Download to Human Activities in Outer Space FacuIty of Law

The Application of Emerging Principles of International Environmental Law
to Human Activities in Outer Space
Howard A. Baker
FacuIty of Law
McGill University, Montreal
Submitted August 1996
A thesis subinitted to the Faculty of Graduate Studies in partial fulfilment of the
requirements of the degree of Doctor of Civil Law (D.C.L.).
O Howard A. Baker 1996
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Abstract
This thesis proposes a legal régime for the environmental protection of outer space.
The proposed régime aims to avoid the shoncomings of current environmental
protection practices based on human self-interest by placing emphasis on respect for
al1 of nature. Chapter I descnbes the phvsical parameters of human space activities,
with an emphasis on near-Eanh space, the Moon, Mars and Venus. Chapter II
proposes the biocentric (life-centred) moral perspective as a rational basis for
international environmental law on Earth and in outer space. Chapter III deals with
four basic principles of international environmental law, which are analysed in order
to develop a biocentric approach when addressing environmental issues on Eanh and
in outer space. Chapter IV describes existing principles and techniques of biosphere
inanagement and proposes a strategv of biosphere risk assessment for managing
ecosvstems according to the biocentric perspective. Chapter V anahses current
iriternational space law to ascertain what restrictions, if anv, environmental pnnciples
of that law mav impose on the biocentnc approach to management of the planetary
eiivironment. Chapter VI proposes a protocol to the Ozitrr Spacr Trmv designed to
protect the planetary environment from harmful human space activities. Chaprer VI1
applies the techniques of biosphere risk assessment to the hazards posed by space
debris, the first major environmental problem in outer space arising from human
acthities.
Resumé
Le but de cette thèse est de présenter un régime législatif pour la protection de
l'environnement de l'espace extra-atmosphérique. Le régime législatif proposé. en se
fondant sur le respect de la nature, tente de combler les lacunes qui existent dans les
pratiques courantes de protection de cet environnement pour des fins personnelles.
Le premier chapitre décnt les paramètres de l'activité humaine dans l'espace, en
particulier dans l'espace près de la Terre, sur la Lune, sur Mars, et sur Vénus. Au
chapitre II, l'auteur nous propose une perspective biocentrique pour rationaliser les
principes de base du droit de l'environnement pour la Terre et pour l'espace extraatiiiosphérique. Le chapitre III traite de quatre principes de base du droit
international de I'emironnement. En se basant sur ces principes, l'auteur développe
une approche biocentrique pour résoudre les problèmes liés à l'environnement
terrestre et a l'espace e.urra-atmosphérique Le Chapitre IV décnt les principes et les
techniques pour gérer la biosphère. L'auteur nous propose une stratégie pour évaluer
les risques liés à la gestion biocentrique des éco-nrstèmes. Le chapitre V analvse le
droit international de l'espace actuel afin de déteminer les restrictions, le case
échéant, que ce droit imposent pour la gestion biocentrique des planètes et de leur
environnement. Le chapitre VI propose un protocole d'entente pour l'application du
Traité sur l'espace extra-atmosphérique conçu pour protéger de l'environnement
planétaire des activités spatiales néfastes de l'homme. Au dernier chapitre, en
iii
utilisant les diverses méthodes d'évaluation des dangers pour la biosphère, l'auteur
évalue les risques que posent les débris spatiaux pour l'espace extra-atmosphérique.
Acknowledgements
This thesis is the culmination of more than 20 years academic experience in the fields
of philosophy, environmental studies and law. Notwithstanding the passage of time,
I still see dearly before me the visages of three individuals from the earlier years, who
were not onlv clear thinkers, but whose conduct always conveyed the convictions of
their beliefs. 1 take this opponunity to acknowledge the influence of Dr Harold A.
("Skip") Bassford, Professor of Philosophy, York University, who introduced me to
the beautv of philosophv and the fundamental nature of ethics; John Livingston.
Professor, Facultv of Environmental Studies, York University, who opened the door
to the wonders of ecology and to humankind's biological heritage; and to Gemr
Carruthers, the first Dean, Facultv of Environmental Studies, who nrasalwavs there
when vou needed hini.
This studv would not have been possible, howver, without the supervision and
advice of Professor Ivan A. Vlasic, Facultv of Law, McGill Universitv. I have had
access to his enensive knowledge and ex~eriencein the fields of public international
law and international space law. I have learned from the opponunities he kindlv
offered me as a guest lecturer in his space law course. And 1 have benefitted from his
continua1 guidance, patience and integrity, to say nothing of his red Pen, during the
time it has taken to prepare this study.
Preface
Candidates have the option of including, as pan of the thesis, the text of one or more
papers submitted or to be submitted for publication, or the clearly-duplicated text of
one or more published papers. These texts must be bound as an integral pan of the
thesis.
If this option is chosen, connecting texts that provide Iogical bridges between the
different papers are mandatory. The thesis must be written in such a way that i t is
more than a mere collection of manuscripts; in other words, results of a series of
papers must be integrated.
The thesis must still conforni to al1 other requirements of the "Guidelines for Thesis
Preparation". The thesis must include: a Table of Contents, an abstract in English
and French, an introduction which clearly States the rationale and objectives of the
stud~r,a review of the literature, a final conclusion and summarv, and a thorough
bibliography or reference list.
Additional material must be provided where appropriate (e.g., in appendices) and in
sufficient detail to allow a clear and precise judgrnent to be made of the importance
and originalitv of the research reponed in the thesis.
In the case of manuscripts CO-authoredby the candidate and others, the candidate is
required to make an explicit statement in the thesis as to who contributed to
such work and to what extent. Supervisors must attest to the accuracy of such
statements at the doctoral and oral defence. Since the task of the examiners is niade
iiiore difficult in these cases, it is in the candidate's interest to make perfectlv clear
the responsibilities of al1 the authors of the CO-authoredpapers.
This study contains materia! previouslv published by the candidate as sole author.
This material is found in Chapter V, Gctions A-C, and in Chapter VII, Sections B.1
and B.3. The material in Chapter V originally appeared in H.A. Baker, "Protection of
the Outer Space Environment: History and Analysis of Article IX of the Outer Space
Treatv" ( 1987) 12 Ann. Air & Sp. L. 143; the rnatenal in Chapter VII, in H.A. Baker.
" ~ ~ Debris:
a & Law and Policy in the United States" (1989) 60 U. Colo. L. Rev. 55.
TABLE OF CONTENTS
Abs tract .......................................................................................................................... i
..
Resunié ........................................................................................................................ -11
Acknowledgements ....................................................................................................... iv
Preface .......................................................................................................................... v
INTRODUCTION .........................
.
.
...................................................................
-1
PART ONE: PHYSICAL AND MORAL FOUNDATIONS OF
INTERNATIONAL ENVIRONMENTAL LAW .....................-3
CI-IAPTER 1: PHYSICAL PARAMETERS ................................................................ 4
4. Introduction: S ~ a c eAct ivities in the Planetarv Environnient ................................ 3
B . The Phvsical d a t u r e of the Universe ...................................................................... 9
1 . Our Galaxv. the Milky Way ......................................................................... 9
2 . Our Solar Svstem and Its Star. the Sun ..................................................... 1
3 . Satellites of the Sun ....................................................................................15
(a) Mercurv ............................................................................................ 16
(b) Venus ............................................................................................... 17
(c) The Earth-Moon Environment ....................................................... -19
( i ) Eanh ..................................................................................... 19
(ii) The Moon ............................................................................
24
(iii) Cislunar Space .................................................................... -26
.
(d) Mars ................................................................................................. 21
(e) The Asteroid Belt and Meteorites ................................................... 30
(f) The Outer Group ......................................................................3 1
C W T E R II: MORAL PERSPECTIVES ON HUMANIUND'S RELATIONSHIP
WITH NATURE .............................................................................-34
A . Introduction ...........................................................................................................34
B . The Anthrooocentric Moral Perspective ..............................................................-39
1 . Two Versions ..Similarities and Differences ............................................-39
2 . Absolute Anthropocentrism ........................................................................41
vii
3 . Enlightened Anthropocentrism .................................................................. -42
(a) Use of Natural "Resources" .............................................................. 42
(b) Limits of "Resource" Depletion and
Environmental Degradation ........................................................... 46
C . The Biocentric Moral Pers~ective ....................................................................... -48
1. Basic Premises .............................................................................................48
(a) Biological Nature of Humankind ....................................................49
(b) Equality of BioIogical Entities ........................................................-52
2 . Implications for Human Treatment of
Non-human Biological Entities .................................................................. -54
(a) Focus on Preservation ..................................................................... -54
.6
(b) Constraints on Human Conduct ........................................
.
(i) Prim Fmie Moral Duties .....................................................37
(ii) Biocentric Management ..................................................... 5 9
(A) Nature of the Project ................................................ 60
( B ) Justification of the Pro ject ...................................... -62
( c ) Implementation of the Project ................................ 65
-- Strategies to Eliminate Hann
and Degradation ............................................... -66
-- Strategies to Minimize Project
Impact ................................................................ -10
C)
(iii) Restitution for Breach of a P r i m Fmie
Moral Duty ......................................................................... -74
PART TWO: EMERGING PRINCIPLES AND PRACTICES OF
INTERNATIONAL ENVIRONMENTAL LAW ...................78
CHAPTER III: BASIC PRINCIPLES OF INTERNATIONAL
ENVIRONMENTAL LAW ...........................................................79
A . The Princinle of Common Biospheric Concem ....................................................80
1 . Cunent Status .............................................................................................80
2 . Biocentnc Critique .................................................................................... -92
viii
B . The Princi~leof Good Nei~hbourliness ................................................................97
i . Current Status ............................................................................................-97
2 . Biocentric Critique .................................................................................... 105
C . The Princide of Precaut ionarv Measures ......................................................... 1 09
1. Current S tatus ......................................................................................... 1 0 9
2 . Biocentnc Critique ....................................................................................120
D . The Princi~leof Sustainable Develonment ............................................... . . . . 1 2 4
1. Current Status ..........................................................................................-124
2 . Biocentric Critique ....................................................................................135
C W T E R IV: MANAGEMENT OF THE BIOSPHEE ................................... 140
A . The Need for Manapement of the Biosnhere ................................................ 142
B . Basic Princioles of Biosnhere Managrnent ..................................................... 146
C . Techniques of Bios here Management ........................................................... 1 49
Current Techniques ................................................................................... 150
(a) Environmental Impact Assessrnent ............................................. 1 5 0
(b) Life Cycle ksessnient .................................................................... 155
Econoniic Incentives ................................................................................. -158
(a) The Polluter Pays Principle and
Enllronniental Cost Internalization ............................................. 158
(b) Subsidies ........................................................................................ 164
(c) Other Incentives .............................................................................165
( i ) Market-Based Incentives .................................................... 166
(ii ) Govemment Regdation .................................................... - 172
Biosphere Risk Assessment .......................................................................175
(a) Scope and Administration ............................................................. 176
(b) The Assessrnent Process ................................................................178
(i) Screening Stage ..................................................................- 178
(ii) Comprehensive Review Stage .............................................180
(c) Settlement of Disputes .................................................................. 188
PART THREE: APPLICATION OF THE PRINCIPLES AND PRACTICE
OF INTERNATIONAL ENVIRONMENTAL LAW TO
SPACE ACTMTIES .......................................................
191
CHAPTER V: ENVIRONMENTAL PROTECTION IN INTERNATIONAL
SPACE LAW ...................................................................................192
A . Environmental Protection in Outer S ~ a c.eon the Moon
and on Other Celestial Bodies ..................................................................................193
1. Enlightened Anthropocentrism in the Space
Science Community ..................................................................................1 9 3
2 . The Ad Hoc COPUOS ..............................................................................-202
3 . The 1963 General Debates ...................................................................... -204
.
4 . Paragraph 6 of the 1963 UN Dedaration on Outer Space ......................2 0 /
5 . Article 10 of the U S Drafi Treaty and
Article VI11 of the USSR Draft Treaty ................................................. 1 2
6 . Article IX of the Outer Spnce Trenty ........................................................
211
(a) Sentence 1 of Article IX ........................................................... 1
9
(b) Sentence 2 of Article IX ............................................................. 221
(c) Sentences 3 and 4 of Article IX .....................................................225
7 . Article IV. para . 1 of the Outer Space Trrnp .............................................. 230
B . Environmental Protection on the Moon and Other Celestial Bodies ................231
1 . Article 7 of the Moon Agreement ................................................................. 231
2 . Article 15. para . 2 of the Moon Agreenzott .................................................. 235
3 . h i c l e 3, para . 3 of the Moon Agre~ntnit ....................................................238
C . Other Possible Sources of International Law relevant to Environment Protection
in p u r e r Space. on the Moon and on Other Celestial Bodies .................................. 238
1 . The Partial Nuclenr Test B m T r e q ............................................................239
2 . The E~tvironmentalModlfcation Cowentio~i...............................................- 2 4 0
D . Effens of Cunent Environmental Protection Provisions in International Snace
Law on the Amlication of International Environmental Law to S ~ a c eProiects .....241
CHAM'ER VI: PROPOSAL FOR AN ENVIRONMENTAL PROTOCOL TO
ARTICLE IX OF THE OUTER SPACE TREATY ..................246
A . The Environmental Protocol .............................................................................. -246
B . Basic Princi~lesand Lepal Oblinations .........................................................2 1
1. Basic Principles of International Environmental Law in the Planetan
Environment ............................................................................................. -251
(a) The Principle of Common Planetary Concem .............................-252
(b) The Principle of Good Neighbourliness .......................................-254
(c) The Principle of Precau tionary Measures ......................................257
(d) The Principle of Sustainable Development ...................................259
2 . Legal Obligations for Planetarv Management .......................................... -262
(a) Respect for Nature .........................................................................263
(b) Protection and Prevention ............................................................ 267
(c) Mininial Impairment ......................................................................269
C W T E R VII: A PLANETARY RISI< ASSESSMENT OF SPACE DEBRIS ...272
A . The Screeninp S t a ~ e............................................................................................ 274
B . The Comprehensive Review Sr a.~ e..................................................................... -280
The Project ..............................................................................................-280
The Ecosystem ........................................................................................ -286
Adverse E ffects ........................................................................................ -281
(a) Collision ........................................................................................ .28/
(b ) Interference ...................................................................................-295
(c) Military Use ...................................................................................298
-*
-
Mitigation .................................................................................................-300
Waste Management ..................................................................................308
Clean Technology ........................................ ..........................................1 4
Monitoring .............................................................................................1 8
Post-projea Andysis ...............................................................................3 1
Restitution ................................................................................................322
Liability ....................................................................................................-324
Third Parties ........................................ ...................................................-330
CONCLUSION ....................
.
.
............................... ......................-.....................-332
BIBLIOGRAPHY ...............................................................-...................................,,-333
e
INTRODUCTION
A comprehensive legal régime does not yet exist for effective protection of the
emlronrnent of outer space, induding the Moon and other celestid bodies, from the
anticipated increase in space activities dunng the coming decades. The purpose of
this studv is to propose such a régime which would avoid the weaknesses of current
environmental law and practices, based on human self-interest, bv emphasizing
respect for al1 of nature.
In the studv, Part One addresses the foundations of international environmental law,
which are rooted in the environment in which hunian activities take place. Because
the focus of the study is the entire planetan.- svstem, the phvsical paranieters of
huiiian space activities, with an eniphasis on near-Eanh space, the Moon, Mars and
Venus, are explored. An outline of the basic moral perspectives applicable to
environmental protection provide the ground for developing the biocentric (lifecentred) moral perspective as a basis for international environrnental law as it applies
to human activities on Earth and in outer space.
Pan Two describes the emerging principles of international environmental law on
which a future legal régime for the environmental protection of outer space can be
based. The current status of the four basic principles of international environmental
2
law is reviewed and their content analysed in order to develop a biocentric approach
for addressing environmental issues in both the terrestrial and outer space
en\lronments. Following a brief analysis of existing pnnciples and techniques of
biosphere management, a strategv of biosphere risk assessment is proposed for
managing Earth ecosystems according to the biocentric perspective.
Part Three applies the pnnciples and techniques of biosphere management to human
space activities. Ir begins with an analvsis of the environniend principles in space
law to ascertain what restrictions these principles rnay impose on the biocentnc
approach to management of the planetam environment. Next a protocol to the Oimr
Spaic. Trmp is proposed for the protection and preservation of the planetary
environment from human space actiklties. In addition to recomniending a legislative
format for the protocol. the proposal applies to space activities the basic principles of
international environmental law and the legal obligations of biosphere management
developed in Part Two of the study. Chapter VI1 applies the techniques of biosphere
risk assessment to the risks posed by space debris, the first major environmental
problern in outer space ansing from human activities.
PART ONE:
PHYSICAL AND MORAL FOUNDATIONS OF
INTERNATIONAL ENVIRONMENTAL. LAW
We have developed from the geocentric cosmologies of Ptolemv and his
forebears, through the heliocentric cosmology of Copemicus and
Galileo, to the modem picture in which the eanh is a medium-sized
planet orbiting around an average star in the outer suburbs of an
ordinary spiral galaxy, which is itself only one of about a million million
galaxies in the observable universe. Yet the strong anthropic principle
would daim that this whole vast construction exists simply for our sake.
This is very hard to believe.
'
If we continue to the planets and the stars, our chauvinisms will be
shaken funher. We will gain a cosmic perspective.'
The foundations of international environmental law are rooted both in the
surroundings ("environment") in which human beings ("huniankind") conduct
their activities and in the nature of hun~ankind'sattitude toward, and
relationship with, its environment. The purpose of Pan One is to set out the
phvsical parameters of, and a nioral perspective for, international
environmental law as it applies to the conduct of human activiries in outer
space, on the Moon and on other celestial bodies.
'
S.W. Hawking, A Brief History of Time: From the Big Bang fo Black HoZes (Toronto:
Bantam Books, 1988) at 126.
W. Sagan, Cosmos (New York:Random House, 1983) at 342.
4
CHAPTER 1: PHYSICAL PARAMETERS'
So it is that o u r envoys are star ~ h i l d r e n . ~
A. Introduction: S ~ a c e
Activities in the Planetarv Environment
Physical parameters are set by the environment i n which activities occur.
Until the middle of t h e twentieth century, humankind's activities were
basically confined to Earth and its atmosphere. But on 4 October 1957, after
some 15 years of e ~ ~ e r i m e n t a t i ohumankind
n,~
took its first tentative step in
the exploration and use of outer space when the first artificial satellite, Sputnik
(Traveller) 1, was launched from the rocket test range a t Tvuratarn i n the
'
The material in this chapter is assembled from several primary sources. These are. in
alphabetical order: J. Baugher. On Civilized Stars: The Searchfor Intelligent Life iti
Ozrrer Space (Englewood Cliffs. NJ: Prentice Hall, 1985); S. Chang. "Organic Chemical
Evolution" in J. Billingham. ed., Life in the Universe (Cambridge, Mass.: MIT Press.
1981) 2 1;T.D. Damon, Introduction to Space: The Science ofspaceflighr (Malabar. Fla.:
Orbit Books. 1989); Hawking, supra, note 1; F. Jackson and P. Moore. Lfe in the
Universe (New York: W .W. Norton, 1987); Sagan. supra, note 2; 1. S. Shkiovskii and C.
Sagan, Intelligent Life in the Universe (New York: Dell, 1966). Additional sources will
be cited where used.
' G.S. Robinson and H.M. White, Jr., Envoys of Munkind: A Declaration ofFirsf
Principlesfor the Governance of Space Sociefies (Washington, DC : Smithsonian
Institution Press, 1986) at 3.
The first rocket, the prototype for every rocket to follow, was the V-2. It was
successfully launched in October 1942 by Nazi Germany under the direction of Wemher
Von Braun, who would become a key player in shaping the US space program. W.A.
McDougall, ...the Hemen and the Earth: A Political Hisrory of the Space .4ge ( N e w
York: Basic Books, 1985) at 43 and W.E. Burrows, Expluring Space: Vbyages in the
Solar Sysrern and Beyond (New York: Random House, 1990) at 32.
5
former Union of Soviet Socialist Republics ("Soviet U n i ~ n " ) .An
~ aluminum
sphere with four extmding rod antennae circled the globe for three months and
provided data concerning the Earth's ionosphere and the temperature regimes
through which it ~assed.' On 3 1 January 1958, the United States joined the
"space race" with the launching of Explorer 1, a 23-kg experimental satellite
which discovered the Van Allen radiation belts that encircle ~ a n h . '
Today most space activities are confined to three basic regions beyond Eanh:
low-Earth orbit ("LEO") ranging in altitude from 200 to 4000 h,
middleEanh orbit ("MEO"), from 1500 to 10,000 km,9 and the geostationan orbit
("GEO"), at 35,800 km. Geostationarv transfer orbits ("GTO") are used for
nioving satellites froni L E 0 to GEO. As well, several satellites have Llsited the
distant planets, while a small number ni11 explore outside our solar svsteni.
L E 0 hosts a nlde varietv of spacecraft: research, military and commercial
telecommunication satellites, as well as remote sensing and other eanh
- -
-
See McDougall, ibid. at 59-62.
' D. Hart, The Encyclopedia of Soviet Spacecrafi (London: Bison Books, 1987) at 12 1.
McDougall, supra,note 5 at 168.
R. Chipman. ed., The World in S'ce: A Swvey of Spoce Activities und Issues
(Englewood Cliffs, NJ: Prentice Hall, 1982) at 341.
6
observation and data-gathering satellites. It is also used for storage of satellites
pnor to their transfer to higher orbits, and temporary residence for humans
launched into orbit. As well, L E 0 currently hosts crewed spacecraft: the Soviet
Salyut (Salute) and Mir (Peace) space stations, the latter having been in
continuous orbit and operation since its launch on 19 Februay 1986"; and
the US space shuttle orbiters which, bv Spring 1996 had flown their 75th
mission."
In the near future, L E 0 will be used for mobile telephones, data
messaging, two-way videoconferencing and high quality voice, video and radio
transmission^.'^ Future uses of L E 0 \vil1 likely indude an international space
station, managed bv the United States, with the participation of the European
Space Agencv, Japan, Canada and Russia.
Hart, supra, note 7 at 174. The first Soviet space station, Salyut 1, was launched on 19
April 1971 and remained in orbit for about six months. Ibid at 160.
'O
" The United States completed its 75th shuttle mission in March 1996. "Columbia
Mission Produces Microgravity Advances" A. W.S.T.(1 1 March 1996) 68.
In March 1993, the World Administrative Radio Conference approved the allocation of
radio spectrum for these services. "Delegates Bestow Mobile Mandate" Space News (915 March 1992) 1 and 20. n i e four major competitors at this time are the Inmarsat
subsidiary ICO Global Communications, a 1O-satellite system with launches beginning in
1998; Globalstar, which plans to launch the first of its 48 satellites in mid-1997; Iridium,
a 66-satellite constellation, expected to launch its first satellite in late 1996; and Odyssey.
a system of 12 satellites, with its first launch planned for 1999. "Space Phone Fims Vie
for Marketing Advantage" Space News (6-1 2 November 1995) 3 and 2 1.
l2
7
In MEO, satellites for global positioning operate. Satellites in G E 0 serve
telecommunications and broadcasting (68 per cent); research. experimentation
and meteorology (1 6 per cent), and national security ( 16 per cent).13
Beyond the reaim of Earth orbits, humans have visited the Moon, both in
person and bv proxy; have successful1y landed uncrewed space probes on the
planets Venus and Mars; have flown satellites bv al1 the planets and manv of
their moons; and in four cases, have seen their satellites leave our solar
sYstem". Sometime in the future, it is likely that a crewed lunar base will be
' j L. Perek. "The Scientific and Technical Aspects of the Geostationq Orbit" (1988) 17
Acta Astronautica 589 at 59 1.
G E 0 is a geosynchronous. nearly circular orbit around Earth, with an inclination of
approximately O degrees. Space objects in G E 0 appear from Earth to be stationary. Due
to perturbations characteristic of objects in GEO, satellites there require fiequent "stationkeeping" manoeuvres in order to maintain their relatively stable positions. See United
States National Research Council, Orbital Debris: A Technical Assessrnent (Washington.
DC: National Academy Press, 1995) at 199-200.
Al1 four satellites are efforts of the US solar exploration programme. They are Pioneer
10, launched 2 March 1972; Pioneer 1 1, launched 5 Apnl 1973; Voyager 1, launched 5
September 1977, and Voyager 2, launched 20 August 1977. Burrows,supra, note 5 at
426-428. Which of Pioneer 10 and Voyager 1 is the first extra-solar satellite depends on
how -'solar system" is defined. If it is defined as the outer limits of the planets, then
Pioneer 10 left first, on 16 March 1983. If it is defined as the lirnit of the Sun's influence
(the solar heliopause), then Voyager 1 will leave first. Ibid. at 320n.
established and uncrewed missions sent to ~ a r s . l *Exploration of asteroids
and cornets also is being d i s ~ u s s e d . ' ~
During less than 40 years since the advent of space exploration, humankind
has not only investigated the surface of the Moon, but has also cast its net
ulder bv means of technological extensions to broaden its spheres of activitv to
the surfaces of Mars and Venus and ro the outskins of the other planets. The
two Vovager and two Pioneer spacecraft are true envovs of humankind as thev
begin their joumeys into the interstellar space be ond our solar -stem
en
route to the s t a r d i If they remain intact, the? wi11 travel through the vastness
of interstellar space until thev settle in orbit about the centre of our galaw, the
Milkv Way. ''
'' The United States is planning to launch an uncrewed mission to the Moon in October
1997. This mission is the first in a series which is expected to culminate in a crewed
lunar base. "Govemment and Private Industry Set Sights on the Moon" Space N e w (27
November - 03 December 1995) 10. The United States also is planning a series of
uncrewed missions to Mars, the first Iaunch date scheduled for November 1996. "Russian
Instrument May Ride on Mars Lander" Space News (1 3-26 November 1995) 6.
' 6 The first spacecraft of the New Millennium project is expected to explore a cornet.
asteroid or some combination of so-called small bodies. "First Contract Due for New
Millennium" Space News (4- 10 September 1995) 1.
"
"
Voyagers 10 and 11 will need 40,000 years to reach the star nearest to the Sun.
R. Maurer, Junk NI Space (New York: Simon & Schuster. 1989) at 46. The power
supply providing communications with Pioneer 11 was disconnected on 30 September
1995. "After 22 Years, NASA Tums Off Pioneer 1 1" Space News (2-8 October 1995) 2.
9
I t seems appropnate, therefore, to consider briefly the geophysical parameters
of this study.
a practical matter, most space activities for soine time will
likely be confined to our solar system, with an emphasis on our own planet,
the Moon, Mars and Venus. It should be kept in mind, however, that in the
long-term, the environment in which humankind will carry out its space
aaivities wi1l be nothing less than the universe itself. For who can tell when
the next major technological breakthrough will occur, enabling huniankind to
travel more quickly and less expensively through the vastness of interstellar,
even intergalactic, space.
It
is important, therefore, to understand and appreciate this ultiniate cosiiiic
context and huinankind's place in it. In so doing, the appropriate nioral
perspective on which to ground an effective and adequate svsteni of
international environmental law niay be determined.
B. The Phvsical Nature of the Universe
1. Our Galaxv. the Milkv Wav
, known as the M i l b Way, is comprised of some 400 billion stars
and an astounding volume of interstellar space. The mass of the Milky Wav is
ovenvhel mingl in the f o m ~of stars, with the interstellar gas and dust of
10
interstellar space accounting for approximately 1 per cent of the total mass.
The Milky Way takes the form of a flattened system wlth a central bulge and
is silrrounded bv a halo of stellar gas called the galactic corona. The Milkv
Way is about 100,000 light years in diameter; its greatest thicknesses is
around 10,000 light years.I9 From "above" or "below", the M i l b Way appears
spiral in forni.
The interstellar space separating the stars in the Milky Way is not a vacuum,
but is composed largelv of clouds of interstellar gas and cosniic dust in a ratio
of approxiinatelv 100 to 1. The material in these clouds is distributed
irregularlv and unevenlv throughout the Milky Wav and the universe as a
~vhole.'~
The dimensions of cosmic dust grains are about the same size as the
wavelength of visible light, in the range of one hundred-thousandth of a
centimetre. These g a i n s Are built up as the result of low-energv collisions
aniong the atoms and molecules of the interstellar medium. The evidence
l9 The light year is used as a unit of measure for interstellar and intergalactic distances.
One light year is the distance travelled by light in one year moving at a velocity of
300,000 km per second, or 9.6 trillion km.
If the material in the clouds were spread uniforrnly throughout the universe, the
concentration of matter would be approximately three hydrogen atoms per cubic cm.
'O
suggests that cosmic dust is composed primarily of molecules of the atoms of
carbon, nitrogen, oxygen and hydrogen and of ice, silicates, graphite,
macromolecular organic compounds and mixtures of these ingredient~.~'
The density of the interstellar gas is extremely low, averaging approximatelv
atom per cubic cm in regions near the galactic plane. This gas is considered
be a unifom~,continuous medium, with a chemical composition in which, like
the stars, atoms of hydrogen and helium predorninate; heavier atoms are
comparatively rare. As well, the simplest molecular compounds are present in
detectable amounts. It is believed that interstellar magnetic fields are
associated with these gas clouds and move 111th them. The general direction of
the lines of magnetic force associated with these fields coincides nlth the
direction of the arms of the spiral structure of the galaxy. The interstellar
niagneric fields are closelv associated with the primarv cosniic ravs which fi11
interstellar space.
2. Our Solar Svstern and its Star. the Sun
I t is a basic tenet of the science of chemical evolution that al1 matter in our
solar system had a common interstellar origin. One current mode1 suggests
'' Most of the organic compounds produced in the interstellar environment are found on
Earth.
that Our solar wstem began to f o m some 5 billion years ago due to the
gravitational collapse of an interstellar doud. This collapse resulted in an
enormous disk of gas and dusr, the primitive solar nebula, shaped like a flving
saucer with the proto-Sun at its centre. As the inner region of the solar nebula
cooled, minerals formed from the hot gas, yielding solids. Eventuallv, accretion
of the fine-grained condensed material led to larger and larger objects and
ultimatelv to the formation of one star (the Sun), nine bodies in elliptical
orbits about the Sun (the planets) and lesser bodies, the satellites in orbit
about the planets and the asteroid belt. The planetaw bodies near the freshlvluminous Sun lost niost of their volatile elements such as hvdrogen; fanher
out, these substances nTereretained.
The Sun is about 33,000 light years from the centre of the Milkv Way and lies
just belrond the inner edge of one of the galactic spiral amis. I t is esriiiiated
that it takes the Sun about 200 niillion years to make one revolution about the
avis of the Mil.
Way, a penod of tirne sometimes termed a cosmic year."
The Sun has a diameter of approximately 1.1 million km, a surface
temperature of about 6000 degrees Celsius and a core temperature of some 15
million degrees Celsius. The Sun contains about 2 per cent of the heavier
It is estimated that Our solar system, from its birth as a cloud of gas to its present state.
is some 25 cosmic years old.
?'
13
elements of the universe because it is a second- or third-generation star, formed
some 5 billion years ago. Notwithstanding its age, the Sun is not expeaed to
run short of energv-producing fuel for another approximately five billion years.
The Sun is the source of vinually al1 energy panicles and waves in our solar
~ ~ s t e r The
n . ~Sun's
~ energy is produced in its core, a nudear fumace. Heat
energv is camed froni the core to the photosphere, where i t flows into space,
mostly as infrared and ultraviolet light. Gamma rays also are produced in the
core. but do not norn~allvreach the photosphere to radiate into space. If thev
did, life as we know i t rvould be inipossible anvwhere in our solar svstem.
The Sun also adds energv/niatter to Our solar wstem through the injection of
streanis of charged panicles. known collectivelv as the solar wind. These
charged panicles are formed when the electrons are srripped from atorns,
leaving onlv their nuclei. In this state, atoms are said to be ionized.
Non-solar energy sources include cornets and extra-solar cosmic rays. As weil, the
planets themselves could contribute some energy. On Earth, for exarnple, there is a small
amount of energy emanating from the radioactive decay of Earth materials. R.G. Barry 6L
R.J. Chorley, Afrnosphere, Weather and Climate, 5th ed. (New York: Routledge, 1987) at
'3
1o.
14
An ionized hydrogen atom consists of a nucleus with one proton (It has no
neutrons to begin with.) and is called a proton; an ionized helium atom hastwo
protons and two neutrons in its nudeus and is called an alpha particle.
The solar wind blows outward from the Sun past the planets, some two or
three tinies fanher from the Sun than plut^,'^ filling our solar systern with a
steadv Stream of charged panicles, mostlv electrons, protons and alpha
panicles. Nom~ally,it takes three to four davs for the solar wind to travel the
119 niillion km from the Sun to Eanh. During periods of high solar activit~,
however, the solar nind increases in speed and densitv."
Another t ~ y of
e particle found in interplaneta
space is knonn as the cosiiiic
rav, even though it is not a ray. The majonty of cosmic rays originate outside
our solar svstem and, possibly, outside the Milkv Wav. Solar cosmic r a n
originating o n the Sun are protons which
III
be accelerated to speeds of up to
'' The point at which the pressure of the solar wind is exceeded by the pressure of the
interstellar plasma is called the heliopause.
" At these times, while exposure to the solar wind is comparable to a human being
exposed to low-level radioactive material, the dosage does not usually reach a dangerous
1eveI.
one-quarter the speed of light, during gigantic, explosive eruptions on the solar
surface. These events are known as solar flare~.'~
3. SateIlites of the Sun
The planets in our solar system are divided into two groups, the inner and
outer. The inner group indudes, from the Sun outwards, Mercury, Venus,
Eanh and Mars. An asteroid belt exists between Mars and Jupiter. the closest
member of the outer group of planets. Al1 members of the inner group have
solid bodies and, during the early dam in the formation of our solar srstem. it
is believed that thev had manv of the same phvsical and chexnical
characteristics.
On the far side of the asteroid belt is the outer group: Jupiter, Satum, Uranus.
Neptune and Pluto. With the exception of Pluto, these planets have relativelv
small cores, surrounded by liquid l a j r s (mainlv
. hvdrogen),
.
which are overlaid
by gaseous atmospheres, hydrogen and helium being dominant, but also
Although the most intensive solar-flare events are relatively infiequent, cosmic rays
released during such an event wouid reach the vicinity of Earth in about 30 minutes and
would be lethal to terrestrial inhabitants, unprotected mission crew members and mission
crew members "protected" by the cabin walls of a US space shuttle orbiter. During this
haIf-hour period, a mission crew member could be exposed to more radiation than is
allowed a radiation worker in a year.
16
including methane, amrnonia and ~ a t e rAdditiondly,
. ~ ~
Jupiter, Satum and
Uranus have strong radiation zones and powerfui magnetic fields surrounding
them. The same is probablv true of Neptune. The compositional status of the
outemost planet, Pluto, is currentlv in doubt.
All planets, except Mercury and Venus, have their own satellites. The larger
Satellites, with the total nuniber for each planet in brackets, are: Earth
-- the
Moon; Mars -- Phobos and Deimos (2); Iupiter -- Io, Europa, Ganynede and
Callisto (16); Satum -- Titan (23); Neptune
-- Triton (2); Uranus (3,
and
Pluto (1).
la)
Mercurv
Mercunr is the planet closest to the Sun. at a distance of 0.39 Astrononiical
Units (AU)? The second-smallest planet, i t has a diameter of 4880
h
i
,
a
solar orbit of 88 Earth davs and rotates on its axis (axial rotation) once evenr
58.6 Eanh davs. The surface temperature on Mercury ranges from 480
degrees Celsius when facing the Sun, to -1 70 degrees Celsius when it is not.
Evidence suggests that, of the i ~ e planets,
r
at least Earth should have exhibited a
similar atmosphere in its earliest days.
'7
One Astronomical Unit is equivalent to 149 million km, the average distance of the
Earth's orbit from the Sun.
"
(b) Venus
Venus is the E a d ' s nearest planetary cornpanion. In size and mass, Venus is
the twin of Earth. With a diameter of approximately 12,100 km, Venus has a
mean distance of 0.72 AU from the Sun, an orbital period of almost 225 Earth
davs and an axial rotation period of 243.01 days. Of al1 the planets, onlv
Venus rotates in the direction opposite to which it orbits the Sun.29
The surface temperature of Venus is in the range of 465 to 480 degrees
Celsius, which is believed due to a "runawav" greenhouse effect. In its earlv
histonr, Venus was thought to be much like Earth, with a cooler temperature, a
thinner atni~sphereand perhaps liquid water flowing on the surface. Over
time, the Sun's heat raised the surface temperature, vaporizing the liquid water
into the atmosphere. The newly f o m ~ e dwater vapour trapped solar energv
near the surface, causing the temperature to rise even funher until it forced
carbon dioxide out of the surface rocks. This process did not stop until ail
surface water was vaporized and al1 carbon dioxide was forced out of the rocks.
Consequentlv, al1 water vapour and carbon dioxide on Venus are found in its
atmosphere.
Technically, the rotation of Uranus is also "backwards" or retrograde; this. however. is
a marginal case.
'9
18
Three distinctive types of terrain have been identified on Venus: lowlands,
comprising 27 per cent of the surface; rolling plains, 65 per cent; and the
highlands (8 per cent), which may be analogous to the large continental land
masses of Eanh.
A dense, cloud-laden atmosphere permanently conceals the surface of Venus.
This atmosphere is mainlv carbon dioxide gas (96 per cent), with relativelv
small amounts of other gases, including argon, sulphur dioxide, nitrogen and
water vapour. The atmospheric clouds contain a great deal of sulphuric acid.
The top of the atmosphere appears to lie about 400 km above the surface, and
the upper clouds, at 70 km. At an altitude of 50 km,there is a clear laver.
while below it a laver of denser cloud and then, at 47 km, a second clear
region. The clouds end at 30 h above the surface. The loirest atrnospheric
region consists mainlv of droplets of water, rich in sulphuric acid, and has been
described as a corrosive, superheated smog.
I t is thought that the extreme surface temperatures eliminate the possibilitv of
any f o m ~ of
s life on the surface of Venus3' Given that about only 1 per cent
of the sunlight reaching the upper layers of the atmosphere penetrates to the
j0
Organic or any other conceivable living molecules would fall to pieces.
19
surface, s p e d a t i o n about Iife on Venus has shifted from the surface to the
atmosphere.
lc) The Earth-Moon Environment
(il
Earth
Earth and its sole satellite, the Moon, are estimated to be some 4.6 billion
vears old. The distance of Earth to the Sun is 1 AU and its diameter, 12,756
hi,with a solar orbit of approximately 365 days and an axial rotation of 24
hours.
The Eanh's surface is undergoing a process of constant alterarion, destniction
and refomiarion," n l t h its cunent coinposition being approsiniatelv 2 0 per
cent land and 80 per cent water. At its nonhem- and southern-most regions
are polar caps, covering about 7 per cent of the Earth's surface. The southern
cap contains about twice as much ice as the nonhem one.
" The cmst and mantle of Earth d o m to a depdi of 100 km are divided lateraily into 10
major continental plates. The plates "float'' on top of a 150-km-thick layer of partially
molten m a d e and migrate laterally at a rate of a few centimetres per year. The result.
then, is that a map of Earth would change significantly during a tirne period as short as
500,000 years.
20
Initially, Earth was very hot and had no atmosphere. I t cooled over tirne and
acquired its initial atmosphere from the emission of gases from the rocks.
While the composition of the prima1 atmosphere is not without controversv, i t
is dear that nitrogen and oxygen, its current major constituents at 78 per cent
and 21 per cent, respectively, were not p r e ~ e n t .Other
~ ~ components of the
atmosphere include argon (about 1 per cent), water vapour (varying from
virtuallv O to 4 per cent), smaller amounts of carbon dioxide, helium, neon,
niethane and knqxon, measured in parts-per-million ("ppm"), and trace
amounts (0.5 ppm or less) of hydrogen, nitrous oxide, carbon monoxide,
ammonia, nitrogen dioxide, sulphur dioxide, hydrogen sulphide and ozone.
Earth's atniosphere ma\. be divided into vertical l a ~ e r scalled the troposphere.
stratosphere, mesosphere, thermosphere, ionosphere, exosphere and
n ~ a ~ n e t o s ~ h eAs
r e a. ~whole,
~
the atmosphere is a mixture of gases 111th
constant proportions up to some 80 km, with the exceptions of ozone, which is
concmtrated in the lower stratosphere, and water vapour, in the lower
troposphere.
3Z It is thought that nitrogen evolved from the effect of solar ultraviolet radiation on
ammonia molecules and that the sarne radiation released oxygen From molecules of water
vapour, present in much greater abundance initially than it is today.
Information on the composition and structure of the atmosphere is based on Barry &
Chorley, supra, note 23 at 51-55 and 58.
j3
21
The lowest I O km is the uoposphere, where d l living things reside. It contains
7 5 per cent of the gaseous mass and virtually al1 the water vapour. Ne.-
is the
stratosphere. With a temperature of -50 degrees Celsius at its lowest level, it
extends upwards from the troposphere to an altitude of about 50 km. The
stratosphere contains the most of atmospheric ozone, with a peak densitv at
approsin-iately 22 km. In this region. Iow-level solar ultraviolet radiation
breaks up owgen into ozone. The ozone, in turn, absorbs solar ultraviolet
light of longer wavelengths and prevents the shorter wavelengths (below 3000
angstroms), which are hazardous to life on Earth, from reaching the planet.
This chemical reaction also heats up the stratosphere.
The laver between 50 and 80 km is the mesosphere, where the temperature
begins to decline once again.'" The thern-iosphere begins at approximatelj*80
kn-i, where the temperature begins to rise once again, and e.urends through to
100 km. Next is what is often t e m e d the ionosphere. In the ionosphere. the
oxygen atoms and nitrogen molecules are stripped of their electrons by the
absorption of X-ravs and long wavelength ultraviolet rahrs emitted by the Sun.
The result is a laver of electrically-charged (ionized) particles, a more localized
version of plasma. The heat generated by ionization causes the temperature to
There is no universal agreement on the divisions of the upper atmosphere, which
begins at about 50 km.
34
22
rise yet again. The ionosphere extends upwards to somewhere between 500
and 750 km, a t which point the exosphere begins. The exosphere consists
mainlv of atoms of oxygen, hvdrogen and heliurn, which are able to escape into
interplanetary space because it is unlikelv that their escape ~ 1 4 1be slowed bv
collisions with other a t o n i ~ . ~ ~
Bevond the exosphere in the r n a g n e t ~ s ~ h e rthere
e , ~ ~are mostlv the charged
particles of the plasma blown in by the solar w~ind.~'These charged panicles
are concentrated in two bands at about 2000-5000 km and 13,000-19,000 hi,
where their radiation is particularl\r intense. These regions, knowvn as the Van
Allen belts, are believed to be the result of the trapping of the charged particles
bv the Earth's niagnetic field3! Due to interactions with the solar wind
In order for an object to escape the gravity of any planet, it is necessary for that object
to achieve a certain speed. its critical velocity. On attaining this velocity. which on Earth
is about 1 1 km per second, the ejected object will escape the planet- atmosphere and
travel indefinitely, i.e., it is moving so rapidly that the gravity of Earth cannot drag it
back.
35
36 In cases where magnetic effects are the subject of investigation, the term
"magnetosphere" may apply from an altitude of 100 km and up. L. Perek. "The
Environmental Impact of Space Activities", at 1. Prepnnt of a chapter prepared in 1987
to appear in B. Jasani, ed., OuferSpoce: A Source of Conflicf.a study prepared by the
Stockholm International Peace Research Institute and United Nations University.
37 It appears that the flow of plasma is not al1 one way. Lower energy plasma is supplied
to the magnetosphere from the ionosphere. Large quantities of this plasma then move
into near-Earth space. See D. Dooling, "Satellite Data Alters View on Earth-Space
Environment" (1987) 29 Spaceflight (Supp. 1) 2 1 at 2 1-23.
38 The atmospheric magnetic field is believed to result from patterns of electric current in
the molten core of Earth.
blowing past Ea*,
the magnetosphere is distoned in appearance. It has an
extended tail on the side of Eanh away from the Sun; on the side toward the
Sun, it is compressed. The magnetosphere acts as a shield to protect life on
Earth from the deadly solar wind par tic le^.^^ At the height of some 80,000
km, the magnetosphere probably merges wîth the atmosphere of the Sun.
Earth hosts a diversitv of life forms, in the process of evolution for some four
billion vears. This life. consisting of a great variety of plant and animal
organisms, would not be possible without the Sun's energv in the f o m ~of heat
and light. Minimal conditions for life as it has evolved on Eanh include. in
addition to solar energv, a moderate surface temperature to rnaintain the
appropriate heat and light; liquid water as a nurturing medium for life forms;
organic (carbon-based) molecules and inorganic nutrients necessanr for the
creation and maintenance of life; protection from the life-threatening charged
particles carried by the solar wind, and oxygen which is probably necessarv for
breathing in air and for the development of higher multicellular organisms with
brains and muscles.
39 There are two weak points in the Van Allen belts over the polar regions where the
hazardous solar radiation can enter the Earth's atrnosphere. The ozone layer in the
stratosphere effectively mitigates the effect of t h i s hazard on the surface of Earth. See
supra at 2 1. The outer Van Allen belt has a peak radiation intensity suficiently high to
be a health hazard to humankind and should be traversed by crewed spacecrafi as quickly
as possible.
24
(ii) The Moon
The Moon is a satellite of Eanh. Its orbit about Earth ranges from 356,4 10 to
406,697 km, with an average distance of 384,400 km. The diameter of the
and no magnetic field.
Moon is 2376 km. With no permanent atrno~phere"~
the surface of the Moon is f d l y exposed to the extremes of solar radiation by
day and solar wind by night. The lunar surface temperature varies from 70
degrees Celsius during the lunar day to -50 degrees Celsius at night. From
Eanh, approxiniately the same face of the iMoon is alwavs obsenred, due to the
forces of tidal friction earlv in the histow of our solar svsteni.
The M o o n is composed of materials similar to those found on Eanh. iMost
abundant are the silicates of iron, aluminum, titaniurn and magnesium. The
lunar surface exhibits several distinct features, including craters, niniiri,
niountains a n d peaks, swellings and domes, and crack-like features known as
clefts o r rills. As well, a steady rain of tiny rneteorites erodes the surface rock
and tums over the soil. Absent from the Moon is anv trace of water.
The density of the Moon's atmosphere is negligible and corresponds to what is
considered a laboratory high vacuum. The atmosphere that exists is a gas of hydrogen,
helium, neon and argon, in which no collisions occur. Occasionally, short-lived
atrnospheric events (transient lunar phenomena) are observed. These phenomena are
believed to be the result of short-Iived emissions from betow the lunar surface.
25
Craters are the Moon's dominant feature. Po&-marking the lunar landscape,
they are walled circular structures, ranging in diameter from 300 km or more
t o tiny pits invisible from Eanh. The nznrin are the roughly circular, darker
areas of the Moon. Only one major marin extends to the far side of the Moon
Created by asteroid impacts early in the histow of our solar .stem.
the ninrin
were later filled ~ l t lava,
h
flowing up from the lunar mantle and solidifving.
T h e lunar soi1 consists of a loose upper laver (regolith) from 1 to 20 m deep.
This Iayer is a breccia, complex rocks made up of shattered, crushed and
melted fragments. Below the regolith is 1 km of shatrered bedrock, followed bv
a 2 5 - h l Iayer of more solid rock. Beneath this solid laver is a denser rock.
Then cornes the hot metaI-rich core, some 1000 to 1500 km in diameter.
Based on evidence recovered during the lunar landings," there is no life on the
Moon nor were there living organisrns in the past. There is, however, an
exceedingly remote possibility of some form of rnicrobiological life deep below
During a period of 3.5 years, from 16 July 1969 to 7 December 1972. the US Apollo
programme successfùlly landed on, and retumed fiom, the Moon six crewed lunar probes.
Burrows, supra, note 5 at 425-427.
26
the surface, if water is available, or some form of other types of organized
matter such as "mineral organisms" or "phvsical life
[iii) Cislunar S ~ a c e
The region benveen the farthest reaches of the Earth's atmosphere and the
Moon is called cislunar space. This region is what is commonly refened to as
outer space, a near-vacuum, populated by molecules and charged panicles
camed bv the solar wind and bv other solar and extra-solar phenornena:
electromagnetic energy in the form of waves (x-rays, ultraviolet, gamma rays,
visible ligh t, infrared, radio waves, rnicrowaves), cosinic rays, meteoroids. and
small pieces of dust and debris, which are thought to be matter left over from
the formation of the solar system.
"Minerai organisms" would include life foms substituting silicon for carbon in the
basic building-block molecules, sulphur for oxygen or liquid ammonia for water.
"Physical life" refers to physical systems with life-like characteristics, such as plasma in
certain zones of a star consisting of ordered patterns of magnetic forces and electrical
charges. See Jackson & Moore, supra. note 3, c. 10. See also, A.G. Cairns-Smith. The
Life P u d e (Toronto: University of Toronto Press, 1971) and G. Feinberg & R. Shapiro.
Li/e Beyond Earth: The Intelligent Earthling 's Guide ro Life in ihe Universe (New York:
William Morrow, 1980) c. 12.
27
The libration or Lagrangian points are a focal feature of the cislunar
en~ironrnent.'~A libration point is a location in space where an object under
the gravitational influence of two larger objects remains motionless relative to
those other two bodies.'" In other words, the object will appear always to stay
in the same place. Relative to Earth and the Moon, there are five such points;
two of them, named L 4 and L5, are stable.4s
[d) Mars
Mars is the Earth's second-closest neighbour, with a minimum distance of
about 58 million kni. Mars has a mean distance of about 1.5 AU from the
Sun, a diaineter of 6760 1u-n. a solar orbital penod of 686.98 Earth dam and
an Earth-tiine axial rotation period of 24 hours 37 minutes and 22.6 seconds.
The Martian surface reaches temperatures as high as O degrees Celsius dunng
the dav, dropping to -85 degrees Celsius at night. In its polar regions, Mars is
never warmer than -70 degrees Celsius.
There is also a Sun-Earth libration point at a distance of 1.5 million km fiom Earth in
the direction toward the Sun. A scientific satellite at this point observes solar activity and
provides early warning of periods of high solar activity. Chipman, supra, note 9 at 354.
I3
" "A Lagrangian Point" Space News (20-26 Apnl 1992) 14.
To locate the oh.0 stable libration points, draw a straight line between the centres of
Earth and the Moon. With Earth as the starting point, measure 60 degrees on each side of
the centre line and draw two additional lines through these angles until they intersect the
orbit of the Moon. L4 and t5 are located at these intersections.
"
28
The physical characteristics of the surface of Mars bear a strong resemblance to
those of Earth, with features such as rocks, soi1 and sand dunes. Given the
fascination over the centuries with the "Red Planer", the iron-bearing rocks of
Mars are of particular interest. These rocks were oxidized to a red colour and.
over the eons, eroded and have been distributed across the Manian surface.
The northem hemisphere of Mars shows evidence of geological activity.
including extinct volcanoes, lava flows, canvons and what appear t o be drv
river vallevs and glacial deposits. The southem hemisphere of Mars is covered
with old, eroded impact craters, much like those on the Moon.
There is ample evidence that liquid water once ran through the channels
etched in the Martian surface. Now, al1 water is found either as vapour in the
atmosphere or as water ice in the subsoil and the thick lavers of the white
polar caps. The smaller northem cap is thought to be composed of water ice;
the colder southem cap, mainly of carbon dioxide.
The interior of Mars is believed to be similar to that of Eanh, containing manv
of the same minerals in a silicate-rich mantle and cmst and a nietal-nch core.
The Martian atmosphere is exceedingly thin. It composed of 95 per cent
carbon dioxide gas, with the remainder a combination of nitrogen and argon,
29
supplemented with traces of oxygen, other gases and water vapour, which
shows seasonal variations. As well, ultraviolet radiation reaches the Martian
surface at full ~ t r e n g t h . ~ ~
Mars has no surface vegetation. The speculation that Mars harbours anv
advanced form of plant or animal life was largely laid to rest by the
experiments undertaken during the two Viking landings in 1975. The bulk of
evidence obtained from the Viking expenments. while inconclusive
biologically. seems to suggest that there is no life on Mars?
However, there
still remains the possibility that some hardv microscopic organisrns, which
evolved in some earlier time, are present in the soil.
le) The Asteroid Belt and Meteorites
Between Mars and Jupiter lies the asteroid belt, containing countless numbers
of solid bodies in orbit about the Sun, ranging in sire from 350 km in diameter
to pea-size and smaller. More than 5000 asteroid orbits have been identified
The additional distance of Man fiom the Sun would not be sufficient to protect
humans from the hazardous effects of the solar wind's radiation.
46
For a description of the two Viking missions and a non-technicd discussion of the lifedetection expenments, see Burrows, supra, note 5, c. 8. See also, B. Adelman, "The
Question of Life on Mars" (1986) 39 J Brit. Interplanetary Soc. 256.
47
30
and charactenzed. It is estimated that the main asteroid belt contains as manv
as a "million chunks of rock with diameters of a kilometer or more?
Asteroids are believed to be the remnants of a planet that never formed.
During their passage, asteroids frequentlv collide with one another, often
breaking off small pieces which are ejected into elongated orbits. Some of
these pieces intersect with the orbit of Eanh about the Sun; others could
possibly collide wivh cometsi9. Of these, a sniall fraction collide ~lrirhEanh
and then are known as r n e t e o r i t e ~ . ~ ~
~Meteoritesare of two basic vaneties, iron and Stone. About tnro per cent of
the stonv
. tvpe
- contain significant quantities of organic matter (carbonaceous
nieteorites). Of these, sonie 0.5 per cent by mass are composed of organic
niolecules, vielding proponionatelv a million times more organic matter than
'' 1. Peterson, Newton's Clock: Chaos in the Solar Sysïem (New York: W.H. Freeman.
1993) at 181.
49 Cornets originate well outside the solar system in interstellar space and are found in
extremely elongated orbits about the Sun at the distance of about one light year. The
general view is that cornets are composed of a primitive, icy material combined with
methane, ammonia and impurities, the study of which could provide evidence as to the
origins of the universe. On the matter of cornets, see C. Sagan and A. Dayan, Cornet
(New York: Pocket Books, 1986).
50 Asteroid pieces are named according to their spatial location: In outer space they are
"meteoroids"; when passing through the Earth's atmosphere, they are "meteors"; if they
survive atrnospheric passage and collide with Earth, they are "meteontes". W. Flury,
"Europe's Contribution to the Long Duration Exposure Facility (LDEF) Meteoroid and
Debris Impact Analysis" (1 993) 47 ESA Bull. 70 at 70.
there is o n Earth. I t is now dear that organic chernical evolution prior to, or
on, asteroids yielded substances which on primitive Eanh
have
constituted the building blocks of the first living organisms.
Jupiter is the largest of the planets. It has a diameter of 143,100 km and is 5.2
AU from the Sun. Twice as massive as al1 the other planets pur together,
Iupiter has an axial rotation of less than 10 Eanh hours. The temperature i n
its upper atmosphere is -160 degrees Celsius; models suggest that the surface
temperature could be some 2000 degrees Celsius. Jupiter is largelv liquid and
gas, n l t h the surface coniposed of hvdrogen and helium gas. The upper layer
of the mantle is made of hvdrogen and helium liquid; at about 30,000 km, the
hydrogen breaks up into a mixture of protons and electrons. The central core
mav be nch in metals and silicate conipounds. Jupiter's atmosphere is thick
and dense, composed of hvdrogen gas (81 per cent), helium gas ( 1 9 per cent)
and traces of methane, ammonia, water vapour, phosphine, gemlane, acetvlene
and ethane.
Saturn, at 10.4 AU from the Sun, is about twice as far from our solar -rem's
heat source as is Jupiter. Smaller in size only than Jupiter, Saturn is a dense
gaseous ball, composed of hydrogen and helium at the surface. The outennost
laver of its mantle is made of liquid hydrogen and helium, while funher
inwards there is a mix of liquid-metallic hydr~gen.At its centre is believed t o
be a dense, metal-nch core. The atmosphere of Satum features mainlv
hydrogen and helium gas, with trace amounts of ammonia and methane.
Satum's ring svstem is a gigantic sheet of water ice particles, each of which
travels around the planet in its o\vn separate orbit?'
Uranus and Neptune are virtual twins, each approximatelv 50.000 hi in
diameter. Uranus is 20.8 AU from the Sun, while Neptune is 30 AU.
Consequentlv. both planets are exceedinglv cold, with upper atniospheric
temperatures estimated to be less than -200 degrees Celsius. Largelv liquid
and gaseous in composition, their surfaces are likelv a m i ~ t u r eof water,
aninionia and niethane. Their atmospheric composition is likelv dominated bv
hvdrogen and helium, nlth a significant amount of merhane.
Pluto is the smallest and coldest of the planets, with a diameter between 3000
and 3600 km and an estimated temperature of -230 degrees Celsius on its
bright side. While its distance from the Sun averages 40 AU, Pluto passes
Jupiter and Uranus also have ring systems, which, unlike S a m ' s . are almost invisible
frorn Earth.
"
33
inside the orbit of Neptune for a portion of its passage around the Sun. Pluto
is believed to be composed largelv of frozen compounds such as methane,
ammonia or water. Its surface is probably covered wirh a methane frost.
CHAPTER II: MORAL PERSPECTTVFS ON HUMANKIND'S
RELATIONSHIP WITH NATURE
[H]e who accepts the ambiguities of his culture without protest and
without critiusm is rewarded with a sense of security and moral
justification. A certain kind of unanimity satisfies our emotions and
easily substitutes for tmth. We are content to think like the others, and
in order to p t e d our common psychic security we readily become
blind to the contradictions -- or even the lies -- that we have dl decided
to accept as 'plain truth'.'
A. Introduction
In any situation, humans relv on a set of principles as to what is right and
wrong and, based on these principles, decide what actions should be taken.
These moral principles provide the basis for a complex set of leamed "values,
beliefs, habits and n ~ r r n s "which
~
determines how humans will treat other
humans, non-human biological entities3 and physical entities. When
considering human relationships with other biological entities and wirh
physical entities, and in determining what conduct is appropriate when
'
T. Merton, "The Wild Places" in R. Disch, ed., The Ecological Conscience: Vohesfor
Suroival (Englewood Cliffs, NJ: Prentice-Hail, 1970) 37 at 37.
B. Devall & G. Sessions, Deep Ecology (Sait Lake City, Utah: Peregrine Smith Books,
1985) at 42.
Generally, an entity is any thing that has a real existence. In this very general sense,
"entity" means "thing" and includes objects, thoughts and concepts. 1. Leclerc,
Whitehead's Mezaphysics: An Introductory Exposition (Bloornington, 111: University of
Indiana Press, 1958) at 21-22. In this study, "entity" is used to refer to natural entities.
Natural entities are al1 things existing in nature, both on and off Earth. Natural entities
are divided into the physical and biological. Biological entities are divided into plant and
animal. Animai entities are divided into human and non-human.
35
interacting with these entities, two moral perspectives can be dearly identified:
the anthropocentric (human-centred) and the biocenuic (life-centred). While
the former provides the basis for international law-making," the latter has been
the subjea of recent international policy discussions on environmental issues.
A basic thesis of this study is that the biocentric moral perspective provides a
reasonable and workable basis for the making of international environmental
law as it applies not only to the terrestrial biospheres, but also to the legal
regulation of human activities in outer space or on celestial bodies, including
the Moon ("outer space").
A fundamental characteristic of biological entities is that thev are, in the
laquage of environmental ethics, entitled to moral consideration. In the
statement "X deserves moral consideration", the terni 'moral consideration' "is
constmed broadlv to include the most basic fornis of practical respect (and so
Organization for Economic Co-operation and Development, An Introduction to
Concepts and Principles of International Environmental Law, OECD Doc.
COM/ENV/TD(93) 1 17 (1 7 November 1993) at 7.
4
The biosphere is that portion of Earth and its atmosphere in which biological entities
exist. See infia, text accompanying notes 49-5 1.
36
is not restricted to 'possession of rights' by X)"!
If a natural entity7 meets the
threshold criteria for moral consideration, i t "deserves moral consideration
from ... al1 rational moral agents"; if a natural entity does not meet the
threshold test, then it fdls outside the scope of moral consideration and has no
standing in the moral spherea8The critena for bringing natural entities within
the scope of moral consideration are developed by discovering "empincallv
common charactenstics of natural entities. ' O
respectable "'
Where a class of natural entities 114th common characteristics is identified,
everv entitv which is a member of that class has inherent worth. To say that
an entitv has inherent worth is to sav:
K. Goodpaster, "On Being Morally Considerable" (1978) 75 J. Phil. 308 at 309. This
article represents the first contemporary account of moral considerability in the context of
environmental ethks.
' See supra, note 3.
Goodpaster, supra, note 6 at 309.
Ibid. at 323. For a discussion on what constitutes an empirically respectable comrnon
characteristic, see W.M. Hunt, "Are Mere T h i w Morally Considerable"? (1 980) 2 Env.
Ethics 59 at 63-65.
'O
See A. Brennan, "The Moral Standing of Naturai Objects" (1984) 6 Env. Ethics 35 at
3 7.
A state of affairs in which the [natural existence] of X is realized is
better than an othenvise similar state of affairs in which [the natural
existence of X] is not reaiized (or not realized to the same degree)."
If an entity has inherent wonh, that worth is independent of anv value which
that entity may have for any biological entity.I2 Such wonh is also
independent from reference to the natural existence of any other natural
entity. l 3
T h e effea of ascribing inherent wonh to the natural entities in a particular
class is substantial. Each member of a class of entities with inherent worth ( 1 )
is equallv desening of "respectful consideration for its existence in nature";'"
(2) is equallv entitled to "making the same daim-to-fulfilment" of its natural
II
See P. W. Taylor, Respect for Nature: A Theory ufEnvironmenral E~hics(Princeton,
NJ: Princeton University Press, 1986) at 75. In this precedent-setting book. Professor
Taylor sets out an original, lucid and philosophically cornplete biocentric environmental
ethic. The author acknowledges his indebtedness to the ethical systern set out in this
work. It fumishes the concept of "inherent worth" and the basic moral framework and
management principles for the biocentric moral perspective set out in this chapter.
'= Professor Taylor distinguishes three types of value which may be attributed to natural
entities. Ibid. at 72-74. An event, condition or expenence has intrinsic value if "that
activity is camed on for its own sake or as an end in itself'. Ibid at 73. An expenence,
end or interest has instrumental value if it is canied on by a biological entity as a "means
to M e r ends". ibid. An object or a place has inherent value if humans believe that it
should be preserved for its "beauty, or historical importance, or cultural
significance,[independently of] its commercial value". Ibid.
l3
Ibid.
'" Ibid. at 76.
38
existence and to "the promotion and protection" of its natural existence;" and
(3) is equally the subject of a moral duty owed by humankind to promote and
protect its natural existencei6.
Within the anthropocentric moral perspective, only humans have inherent
worth. When a biocentric moral perspective is adopted, the scope of inherent
wonh is expanded to include al1 biological entities. The remainder of this
chapter sets out the basic positions of each of the anthropocentnc and
biocentric moral perspectives. It 1vivil1 be argued that there are two versions of
the anthropocentric moral perspective; that both versions are ineffective for
dealing adequatelv wvith environmental problems; and that the biocentric
moral perspective provides an effective and rational framework for addressing
eiwironmental problems that do, and ndl, affect both the terresrrial biosphere
and outer space, the Moon and other celestial bodies.
l5
Ibid. at 78.
'
Ibid.
39
B. The Anthro~ocentricMoral Pers~ective
1 . Two Versions -- Sirnilarities and Differences
There are two versions of the anthropocentric moral perspective, the absolute
and the enlightened. Both amibe inherent worth only to humans, who see
themselves as "the source of dl value, the measure of dl things".li Both view
al1 non-human bioIogica1 and physical ("non-human") entities as mere
instrumentalities for human goals, as means for the bettermenr of humankind.
The difference between the absolute and enlightened versions of
anthropocentrism lies in the attitude each expresses toward the human use of,
and responsibilitv tonard. the non-human entities constituting terrestrial
e c o s v s t e n ~ s ~The
~ . absolutist position is that there are no limits to the huinan
use of non-human entities, nor does humankind have an? responsibilitv to
human or non-human entities for any adverse consequences which mav arise
from such use. The enlightened position, currently the predominant one,
places some restrictions on the human use of non-human entities and accepts
Iimited responsibility for some adverse consequences arising from such use.
l7
J. Seed, "Anthropocentlism" in DevaIl& Sessions, supra, note 2,243 at 243.
l a The cornponents of an ecosystern are al1 the biological and physical entities in nature,
the relationships between these entities and the surroundings in which both the entities
and relationships exist.
40
When either version of the anthropocentric moral perspective is accepted, the
only entities in nature which need to be treated ~ v i t hrespect are humans. This
respect entitles a11 human entities to the fulfilment, promotion and protection
of their natural existence. Further, humankind owes a dutv to extend these
entitlements only to other members of the dass of human entities.
Both absolute and enlightened anthropocentnsm regard humankind's
relationship with non-human nature as one in which humans dominate. As
dominant, humankind sees itself as "above, superior to, or outside" non-
human nature.I9 Whenever any entity in nature is perceived bv humankind as
See Devall & Sessions, supra, note 2 at 43-44. On the concept of hurnan dominance
over nature, see L. White, Jr., "The Historical Roots of Our Ecologic Cnsis" in P.
Shepard & D. McKinley, eds, The Subversive Science: Essays Toward an Ecologv of
Mun (Boston: Houghton Mifflin, 1969) at 341 (dominance as a logical consequence of
the Judeo-Christian ethic) [hereinafter Shepard & McKinley (Science)];J.A. Livingston,
One Cosmic Imîant: Man's Fleeting Superiority (Boston: Houghton Mifflin, 1973)
(dominance as an inheritance of Western civilization); W. Leiss, The Domination of
Nature (Boston: Beacon Press, 1974) (investigation into the relationship between the
concept of dominance and the development of science and technology in shaping
attitudes toward nature); and D. Ehrenfeld, The Arrogance of Humanism (New York:
Oxford University Press, 1985) (dominance as a consequence of humankind's faith in the
power of reason and its offspring, science and technology).
l9
having a use, t h a t entity becomes a naturd " r e s o ~ r c e " to
~ ~be
, developed
according to h u m a n wishes?'
2. Absolute Anthropocentrism
The absolute anthropocentrist is symbolized bv the "pioneer, t h e frontier
culture hero", whose success "depends o n his ability to fight t h e wildemess and
win"." T o achieve his o r her objectives, the pioneer employs t o the fullest
extent possible t h e technological tools of t h e day to overcome natural obstacles
and to tame the ~vilderness.'~In undertaking development projects24 for the
J.A. Livingston, The Failacy of WiidZije Conservation (Toronto: McClelland &
Stewart, 198 1 ) 1 7-1 8 [hereinafter Livington (Fallacy)]. Following Livingston,
'O
"resource" is piaced in quotations to indicate that resources, either renewable or nonrenewable, corne into existence on1y when non-human entities become useful to man, Le..
they have some instrumental, intrinsic or inherent value. See also H. Rolston III,
Philosophy Gone Wild: Essays in Environmenial Eihics (Buffalo. NY: Prometheus Press.
1986) at 1 19-12 1. The quotation: also serve to indicate that "resources" exist only as
objects of discussion, divorced from their relations to persona1 experience, abstracted
from the experience of being-in-nature. See N. Evemden, The .Vatzrral Alien: Humankind
and the Environment (Toronto: University of Toronto Press. 1985) at 125-134.
" For a general statement of the fundamental propositions of anthropocentrisrn. see S.
Paradise, "The Vandal Ideology" in P. Shepard & D. McKinley, eds, Envirodmental:
Essays on the Planer as a Home (Boston: Houghton Mimin, 1971) [hereinafter Shepard
& McKinley (Essays)] 222 at 223-226.
--
Merton, supra, note 1 at 3 7.
23
See ibid. at 37-39.
77
"
In this study, a developrnent project is any human activity that interferes with natural
entities or their natural surroundings. This interference may be direct (e-g., culling
animal populations; clear-cutting a wooded area; removing an ore deposit from under the
surface) or indirect (e.g., excavating fields to build structures; introducing industrial by-
42
bettement of humankind, the absolute anthropocentrist considers him- or
herself to be unfettered. Natural "resource" use is unlimited; development
projects are free from restrictions, controls or any other regdation.
Any adverse effects on other human and non-human entities, which may anse
from development projects, are considered irrelevant. Moreover, absolute
anthropocentrists neither accept that they are responsible to natural entities
for injury or destruction whicli mav arise from such projects, nor consider that
anv f o m ~of compensation is necessarv when loss or damage occurs.
The shift from absoIute anthropocentrisiii to enlightened anthropocenrrism
arises when the adverse or potentially adverse effects of developrnent projects
on human and non-human entities are recognized and when action is taken to
avoid these effects?
The enlightened project developer remains
products of manufacturing and processing into a water system).
"The danger of complete man-centredness in relation to nature is like the danger of
immediate and thoughtless selfishness everywhere: the rnomentary gain results in
ultimate loss and defeat. 'Enlightened self-interest' requires [that] some consideration ...
[be given] to relations between man and the rest of nature." M. Bates, The Forest and rhe
Sea: A Look at the Economy ofNofure and rhe Ecology of Mar; (New York: Vintage
Books, 1960) at 26 1.
ZS
anthropocentric because the goal of any remedial action is Iimited to the
bettement of the human condition. to the exclusion of non-human entities?
In trymg to address the adverse effects created by development projects, the
enlightened anthropocentrist assumes the role of steward." As such, the
enlightened anthropocentrist understands that if the conternporary human use
of non-human entities is not controlled, the result will be a decrease in
humankind's standard of living or, quite possiblv, t h e extinction of the hunian
species. To avoid these consequences, the steward places limits on
development projects in order to ensure that natural "resources" d l be
maintained for human use, prorected for the benefit of current and future
generations of h ~ r n a n k i n d . ~ ~
For an overview of the basic "refomist" position of eniightened anthropocentrism and
its variations. see Devail & Sessions, supra. note 2 at 52-6 1.
26
'' On the various stewardship positions, see ibid. at 120- 125.
The most significant policy statement in support of the enlightened anthropocentric
moral perspective is found in World Commission on Environment and Development, Ozrr
Cornrnon Furure (Oxford: Oxford University Press, 1987). Released in 1987, this repon
to the United Nations Commission on Environment and Development appears to have
become the fundamental document for international policy on regulating the human use
of non-human entities. It advocates a global action plan for sustainable development in
order to ensure the survival of life on Earth. Sustainable developrnent is viewed as
development which rneets the needs and aspirations of the present and future generations
of humankind and, at the sarne time, protects and conserves non-human entities to ensure
the maintenance of terrestrial ecosystems for the benefit of humankind. See World
Commission on Environment and Development, ibid. at 43-46. The first CO-ordinated
international effort to develop law based on ths policy culminated in June 1992 at the
"Earth Surnmit" in Rio de Janeiro, Brazil. On the concept of sustainable development.
44
To provide for an adequate supply of those natural "resources believed to be
"
necessary for meeting human needs and aspirations and to ensure that
adequate limits are placed on the use of these "resources" so as to maintain
their sustainability, the anthropocentnc steward employs scientific
management plans based on the notion of "wise use".29 In producing such a
plan, the "wise use" steward determines what is the maximum sustainable yield
for any "resource" which mav directly or indirectly be adversely affecred by a
development project.
Maximum sustainable vield d l vanraccording to the natural "resource" under
consideration. If the "resource" is "renewable" (non-human biological entities
such as fish and trees), the maximum sustainable vield is that quantity of the
resource which mav be used to allow for its "regeneration and natural
growth".30 If the "resource" is "non-renewable" (physical enrities such as
rninerals and fossil fuels), then the maximum sustainable yield is that quantiry
see Chapter III, infia, Section D.
29 For arguments made in support of "wise use" management, see Livingston (Fallacy),
supra, note 20 at 42-46.
World Commission on Environment and Development, supra, note 28 at 45. Query
whether in practice there is such a thing as a renewable resource: "If 'resource' continues
to mean something put to human use, then no resource is renewable. Our demands have
quite outstripped the capacity of those resources to satisfy hem, much less to satisQ them
on a sustainable basis." Livingston (Fallacy), ibid. at 43.
'O
45
of the "resource" which may be used "to ensure that the resource does not nin
out before acceptable substitutes are a~ailable".~'
Once the maximum sustainable yield has been calculated, the management
plan sets out the limits to be placed on the development projea to ensure the
sustainability of the potentially affeaed narural ''re~ources~~.
Under this plan,
non-human entities become quantifiable variables in a resource management
equation, with their instrÿmental value calculated according to the econoniic
benefit humankind will derive from their use. The economic benefit of the
natural "resource" in question provides the project developer 111th an objective
standard for determining the financial viability of a developrnent project and,
if viable, the economic benefi ts and costs of the deveioprnent and
consenration3' of the natural "resources" and any other non-human entities
which may be affected by the development ~ r o j e c t . ~ ~
"
World Commission on Environment and Development, ibid. at 45-46.
32 "Conservation" is used to refer to the management strategy employed by enlightened
anthropocentrists in order to maintain natural "resources" for future human use. in
contrast to "preservation", which is used to refer to the fundamental biocentrïc
management strategy for protecting non-human biological entities and their ecosystems
from present and future human use. See Livingston (Fallacy), supra, note 20 at 15-16 and
Taylor, supra, note 1 1 at 185. On preservation, see infia, Section C.2(a).
33 For an example of the approach of the "resource" economist in the context of
wildemess conservation, see DevaIl& Sessions, supra, note 2 at 1 15-1 17.
46
{bb Limits on "Resource"De~letionand Environmental Deeradation
During the lifetime of a development project, certain non-human entities will
be depleted and the surroundings in which these entities exist may be
degraded. To address the concems of "resource" depletion and environmental
degradation, the steward places strong reliance on the basic lessons of
e c ~ l o g y . ~Generally,
"
ecology teaches that the biological and physical aspects
of nature are interrelated and that, if hurnankind is to survive, then a scientific
understanding of the requirements for a healthy and sustainable biosphere is a
necessity .35
MTithinthe moral perspective of the enlighrened anthropocentric, ecoiogv is a
niulti-purpose management and econoniic tool of the project developer.
Ecology applied in this manner ( 1 ) furthers "the maximum utilization of the
'"Ecology has been defined as "the study of the structure and function of nature". E.P.
Odum, Ecology (New York: Holt, Rinehart & Winston, 1963) at 3. A more recent
definition States that ecology is "the study of the natural environments and of the relations
of organisms to each other and to their natural surroundings". R.E. Ricklefs, Ecoloa, 3d
ed. (New York: W.H. Freeman, 1990) at 806. While both are usefûl, the author prefers
the second because it specifically acknowledges that ecology concems itself not only with
biological entities, but aiso with relationships between those entities and their natural
surroundings.
35
"[AIS we contemplate the need for global management of naniral resources, we are
doomed to fail if we do not understand their structure and funetion, an understanding that
depends on the pnnciples of ecology". Ricklefs, ibid at 3-7. See also, Odurn, ibid. at 1-2
and Nifia, text accompanying notes 49-5 1.
47
eanh as raw material in the support of one ~ p e c i e s " (2)
; ~ ~ensures that such use
is neither inefficient nor unnecessarily d e s t r ~ c t i v eand
; ~ ~ (3) assists in the
calculation of the maximum sustainable yield of non-human entities in order
"to preserve the biotic capital while maximizing the i n ~ o r n e " ~ ~ .
For the enlightened anthropocentnc, the concept of sustainable development
provides the basis for assigning responsibility for any i n j u or
~ destruction to
natural entities, arising from development projects. The position of the
steward is that humankind is responsible for ensuring thac the terrestrial
biosphere can continue to support human life in the manner to which
humankind has become accustomed. Humankind fulfils this responsibilitv
- bv.
developing management plans, which attempt to limit the adverse impact of
development projects and to conserve natural "resources" and other
incidentallv affected non-human entities, in order to provide functioning
terrestrial ecosvstems for sustained human use. This responsibility also
includes the creation of compensation schemes to be applied in cases rvhere the
consequences of development projects have adverse effects on human interests.
36
Evemden, supra, note 20 at 22.
D. Worster, Nuture's Economy: The Roots of Ecology (San Francisco: Sierra Club
Books, 1977) at 3 15, quoted in Evemden, ibid. at 22.
"
48
1. Basic Premises
The biocentric (life-centred) moral perspective is in fundamental conflict on
philosophical grounds with both the absolute and enlightened anthropocentnc
moral perspectives. To adopt the biocentric moral perspective is to reorient
completely the bases of one's moral framework for action.39 This radically
different moral perspective is based on two premises: the biological nature of
humankind and the equality of al1 members of the class of biological entities.
(a) Biolo~icalNature of Humankind
As to the first foundation, al1 huiiians are considered not merely as human
beings, but rather have common charactenstics as menibers of the broader
class of biological entities, which includes humans, al1 aninials and plant^.''^
Al1 biological entities "face certain biological and physical requirernents for
[their] sunival and well-beir~g";~'
have "a good of their own to realize";" are
39 If individuals were to replace an anthropocentric moral perspective with a biocenrric
one, "[wle would see ourselves and our place in the natural world in a new light. Our
whole ethical orientation would undergo a deep and far-reaching transformation, entailing
profound revisions in our treatment of the Earth and its biotic communities. A total
reordenng of our moral universe would take place." Taylor, supra, note 1 1 at 134.
40
See generally, ibid. at 101- 1 16.
4'
Ibid at 101.
49
capable of "being in a position to be able to pursue [rheir] existence and [their]
own good",43and have a "common origX4'.
Consequences which flow from these commonalities include: ( 1 ) the
"biological requirements of s u ~ v a and
l physical healdi" become the
"normative guides" for s~rvival;"~
(2) al1 biological entities are, to the exrent
thev are able, free to be absent from constraints in pursuing the fulfilment of
their natural existence;'16and (3) humankind, in its common origin with other
biological entities, "fit[s] into the same structure of realitv that accounts for
every other form of life"?
During the process of corning to understand humankind's biological nature
and humankind's place in the natural world, a biocentrist looks to both the
knowledge acquired lrom the science of ecology and the e'cperience of
43
Ibid. at 108.
j4
Ibid at 111.
45
Ibid. at 103.
46
See ibid
"
Ibid. at 113. Seealso, ibid at 111-113.
at 105-1 1 1.
50
ecologists to "suggest, inspire and fortifj? his or her perspective." Three
related ecological concepts are central to the biocentric moral perspective:
"interdependence", "ecosystem" and "biosphere".
Ecology teaches that the world of living organisms, biological entities, is firmly
rooted in Earth and its atmosphere, the world of physical entitie~.'~In fact,
the world of biological entities is totally dependent on the world of phvsical
entities. Furthemore, the biological world is an extension of the phvsical
world, in that biological entities are predetermined to a certain =Tent bv the
physical entities. Yet, while the phvsical world is necessary for the survival of
the biological world, the reverse is not the case: The world of phvsical entities
would continue its evolution without the world of biological entities.
Frorn an ecological perspective, the evolution of life resulted from a
combination of physical and biological factors. Through thrse combinations,
the worlds of physical and biological entities became, and still are,
A. Naess, "The Shallow and the Deep, Long-Range Ecology Movement. A Summary"
(1 973) 16 Inquiry 95 at 98.
'' Unless otherwise indicated, the information in this paragraph and the three subsequent
paragraphs is based on material from Ricklefs, supra, note 34 at 3 1-35 and 45-47. In
addition to the components of Earth and its atmosphere, such as land, water. carbon and
oxygen, inorganic nutrients and salts, the physical world includes temperature and light.
See ibid. at 48-69.
51
interdependent. M i l e the land, water and atmosphere made the emergence of
biological entities possible, the biological world also transformed entities in the
phvsical world: atmosphenc oxygen would not exist but for photosvnthesis, the
process by which plants use the light energv of the Sun to combine carbon
dioxide and water into basic nutrient sugars. In some instances, this
biological/physical interdependence is mutually advantageous. As soil and
water are providing the essential nutrients for plant life, for example, plants are
influencing the development of soil and the movement of water.
The ecosvstem concept, a fundamental principle of ecologv, is preniised on the
idea of the interdependence of biological and phvsical processes. In an
ecosvstem, the processes of energv transformations in, and of movements of
material through, biological and physical svstems, couple biological processes
to phvsical processes in a single functional whole. One practical effect of this
interdependence is that any change in one part of an ecosvstem will "cause
~ ~ intimate
adjustments to be made throughout" the e c o ~ y s t e r n .The
interdependence of the physical and biological realms of existence is what anv
ecosvstem depends on for its survival.
Taylor, supra, note 1 1 at 1 16- 117.
52
The living portion of the terrestrial ecosystem is called the biosphere, a fragile
shell intenvoven with the outer edge of the planet. "The biosphere, al1
organisms combined, makes up onlv about one pan in ten billion of the eorth's
mass [and] is sparsely distributed through a kilometre-thick laver of soil. water
and air stretched over a half-billion square kilometres of ~urface."~'
(b) Eaualitv of Bioloeical Entities
The second foundation of the biocentric moral perspective is that al1 menibers
of the classes of human and non-human living entities are equal, solelv
- bviirtue of their being biological entities. As a result. al1 human and non-huinan
biological entities have equivalent inherent wonh. Phvsical entities. on the
other hand, are seen as having instrumental, intrinsic or inherent value, t o the
extent that thev are useful to the siinival and well-being of biological entities.
Regarding al1 biological entities as having inherent wonh bv Mrtue of their venr
existence is considered a basic tenet of respect for nature?
As biologically
equal, every human, non-human animal and plant is considered a unique
"
E.O. Wilson, The Divers@ of life (Cambridge, Mass: Belknap Press of Harvard
University Press, 1992) at 35.
52 See e.g., Taylor, supra, note I 1 at 129-130; Naess, supra, note 48 at 95-96. and Devall
& Sessions. supra, note 2 at 67-69.
53
centre of natural existence, capable of realizing its existence in its olvn wav,j3
and exhibiting "a constant tendency to protea and maintain [its] e ~ i s t e n c e " ~ "
during the process of realization. As a subject of inherent worth, each
biological entitv is entitled to respectful consideration for its existence in
nature, is entitled to the fulfilment, promotion and protection of its natural
existence, and is owed bv humankind a dutv to promote and protect its natural
Acceptance of the biological equalitv of a11 human and non-human living
entities also entails "a total rejection of the idea that hunian beings are
superior to other living things".j6 For a biocentrist, the needs and desires of
huinankind are no longer the standard of judgnient for what is good, valuable
or beneficial. Rarher. the standard of judgment becomes rhe needs of
biological entities." Consequently, as one among many biological entities,
hurnankmd will be subject to constraints on its interactions with al1 nonhuman biological entities (by vinue of their inherent worth) and anv phvsical
I3
Taylor, supra. note 1 1 at 100.
"
Ibid. at 122.
" See supra, text accompanying notes 14- 16 .
56
Taylor. supra, note 11 at 129.
"
See ibid. at 129- 13 1.
54
entities which may have instmmental, intrinsic or inherent value for the
s u ~ v a or
l well-being of biological entities and their ecosvstems.
2. Irn~licationsfor Human Treatrnent of Non-human Biolo~icaIEntities
{a) Focus on Preservation
The implications of the biocentric moral perspective for t h e human rreatment
of non-human biological entities are substantial. The focus is no longer o n the
maximum sustainable vield of natural "resources" for the use of present and
future generations of humankind, sustained bv means of conservation
managenient plans.58 Instead, respect for nature entails the presenration of
biological entities-in-ecosvstems j 9 from present and future human use. In
acting o u t of respect for nature, biocentnsts strive to mesente the existence of
L
biological entities bv niaintaining their natural ecosvsteins and bv ensuring
that the physical entities in those ecosvstems are "beneficial to a great varier\.
" For a summary of the arguments against maximum sustainable yield as applied to
wildlife management, see T. Regan, The Case for Animal Rights (Berkeley: University of
California Press, 1983) at 355-357.
59 In this study, unless otherwise indicated, the term "biological entities" includes
humans, non-human animals and plants, and "ecosystem" includes any other biological
entities, physical entities, their surroundings and the interrelationships among them
necessary for the fulfilment of the natural existence of the biological entities. The term
"entities-in-ecosystems" is used instead of the more traditional "entities and their
ecosystems" to emphasize that the interrelationships among the parts are necessary for
fùlfilment of the natural existence of both the parts and the whole.
of biotic communities"."
Within t h e biocentnc moral perspective, t h e nature
of ecosystems as a web of biological entities, physical entities and the
relationships between them,61d i a a t e s t h a t preservation cannot be only of
individual biological entities. Presewation must also include their habitats?
Habitat presenration ensures the s u n i v a l a n d protection of the diversitf3 of
'O
Taylor. supra. note 1 1 at 8 1.
6'
See supra, text accompanying notes 49-50.
" Wilson, supra, note 5 1 at 259. A habitat is a "[pllace where an animal or plant
normally lives. [and is] often characterized by a dominant plant form or physical
characteristic (that is, the Stream habitat, the forest habitat)". Ricklefs. supra. note 34 at
8 1 1. Habitats, therefore, may comprise a portion of, or an entire, ecosystem.
'' One aspect of ecology is the study of cornmunities, which may be defined as
"association[s] of interacting [species] populations". Ricklefs, ibid. at 656-657.A species
is "a population [of biological entities] whose members are able to interbreed freely under
natural conditions". Wilson, ibid. at 38. A species population is "reproductively isolated
from a11 other kinds" of biological entities. Ricklefs, ibid. at 824. Biological diversity. or
biodiversity, is "a measure of the variety of species in a community that takes into
account the relative abundance of each species". Ibid at 806. The presenration of
biodiversity is considered to be "the key to the maintenance of the world as we know it"
because it gives ecosystems a "resilience" to natural adversities; without biodiversity,
ecosystems would decay beyond the point of self-restoration. See Wilson. ibid. at 14- 15.
Since at least the late 1950s, naturalists have stated that survival of the biosphere requires
the preservation of biodiversity and that the preservation of biodiversity requires a change
in humankindts attitude toward nature. E.g., Marston Bates published the following in
1960: "Our anxiety about the future, when we analyze it, tums largely on three related
things: the iikelihood of continuing warfare, the dizzy rate of human population growth.
and the exhaustion of resources. ... How, in the face of our power, in the face of our
danger, do we develop a guiding philosophy? ... Insofar as man's relations with the rest of
nature are concemed, 1 think we must make every effort to maintain diversity -- that w e
must make this effort even thouph it requires constant compromise with apparent
immediate needs." Bates, supra, note 25 at 252-253. Despite this awareness, the gradua1
increase in both the global human population and the nature and extent of human
interactions with ecosystems has resulted in a iapid rate of extinction of species
56
non-human biological entities and the continued (and continual) interactions
both among these entities and between these entities a n d their ecosystems. In
this way, habitats preserve the natural evolutionary pro ces^.^'
/b) Constraints on Human Conduct
To ensure preservation of biological entities-in-ecosystems in accordance nlth
respect for nature requires that constraints be placed o n human conduct "for
the purpose of avoiding doing hami to or interfering with the natural status of'
non-human biological entities-in-ecosy~tenis.~~
Anv hüman action that is
undertaken in relation to non-hunian biological entities should "fit in and flonr
wvith" natural pro cesse^^^ and should be taken solelv "out of consideration and
~ o n c e r n " ~for
' the fulfilnient of their natural existence, without any regard for
hurnan benefit6'.
populations and, consequently, now poses a serious threat to the biodiversity, and hence
the swival, of the biosphere. See Wilson, ibid at 253-259 and 272. The two current
cntical human threats to global biodiversity are the logging of primeval forests and the
acceleration of global climate change. See ibid. at 259-278.
See DevaIl& Sessions, supra, note 2 at 126-127.
'' Taylor, supra. note 11 at 8 1.
Devall & Sessions, supra, note 2 at 145.
67
Taylor, supra, note 1 1 at 84.
6g
See ibid. at 84-85.
57
li) Prima Facie Moral Duties
For biocentnsts, the constraints on human actions are derived from three pn?m
fade moral duties. The first and most fundamental dutv is "not to do harm to
any [biological] entity"69. Such harms include killing individuai biological
entities or species populations, the destruction of habitats or ecosvstems, or
any other action that would be "seriously detrimental" to biological entities-inecosystendO The second duty is to avoid interference with "the normal
activity and healthy developmentT'of biological entities-in-ecosysten~s.~'
Interference occurs when constraints are placed either on biological entities, b~
preventing or hindering the fulfilment of their natural existence," or on their
ecosystems, bv preventing or hindering the attainment of their natural
Where either of these duries is
evoiution and healthy de\~el~prnent.'~
breached, the third basic dutv is to make restitution in order to presen7eor
promote the natural existence of biological entities-in-e~os~sren~s?
69
Ibid, at 172.
O'
Ibid. See also. ibid. at 1 72- 1 73.
'' Ibid. at 173.
'' Ibid at 173-175.
'' Ibid. at 175-176.
74
See ibid. at 186-1 87. On restitution, see infra, Section C.L(b)(iii).
58
Preservation of non-human biologicai entities-in-ecosystems does not, however,
--
constitute a blanket prohibition against harm to, or interference with, them."
ICiIling non-human biological entities or destroying physical entities is
permissible in self-defence in cases where a non-human biologicai entitv or a
physical entity threatens the natural existence of any human entityi6 Where
the Iife or basic heaith of human entities is threatened by non-human
biological entities or phvsical entities, humans may defend themselves bv those
means causing "the least possible harm" to the threatening entity, if humans,
"using reasonable care, cannot avoid being exposed to [such an entitv] and
cannot prevent [such an entitv] from doing serious damage to the
environmental conditions that make it possible for [humans] to exist and
78
function as moral agents" .
'' Lb[A]nyrealistic praxis necessitates sorne killing. exploitation, and suppression."
Naess, supra, note 48 at 95. See a h . Devall& Sessions, supra. note 2 at 67.
76 Taylor, supra, note 11 at 264-265. Cases in which interference is pemissible are
addressed. infra, Section C.Z(b)(ii).
" As moral agents, the existence and huictioning of humankind are govemed by the
rights of subsistence and security (the nght to life), liberty and autonomy. See Taylor,
supra, note 11 at 226-241. These mord rights are not absolute, but may be waived in
situations where their infringement is morally justifiable. See ibid. at 243-245. Such
situations, which &se when humaris with an attitude of respect for nature interfere with
non-human biologicai entities-in-ecosystems, are addressed, infia, Section C.î(b)(ii).
Taylor, supra, note 1 1 at 264-265. On the principle of self-defence, see ibid. at 264269.
78
59
(ii! Biocentric Manaeement
The three moral duties set out in the immediately preceding section form the
basis of biocentric management, which provides the framework for the
constraints on human activities. The goal of biocentric management is to
ensure that human projects neither h a m . nor interfere with, the fulfilment of
the natural existence of al1 non-threatening non-human biological entities-ine c ~ s ~ s t e r n s To
. ' ~ meet this goal, al1 potential development projects are subject
to re~lewin order to ascenain (1) the nature of the project; (2) given the
nature of the project, whether hann to, or interference with, non-human
biological entities-in-ecosvsterns is justified; (3) when h a m ~or interference is
justified, what are the appropriate measures for implemenring the projecr; and
(4) when the project is implemented, what restitution is required to
,
biological
compensate for anv harms to, or interference ~ v i t hnon-human
entities-in-ecosvsterns.ao
/A)
Nature of the Proiect
Where non-human biological entities pose a threat to human entities, the latter are
entitied to prevent the threat by means of self-defence. See infia, text accompanying
notes 75-78.
79
The conceptual framework for biocentric management is based on Taylor, supra, note
I I at 269-3 10.
'O
60
To determine the nature of a project, a biocentnst considers the human
interestssl which the project is intended to promote. These interests mav be
either basica2 ("needs") or n o n - b a ~ i c("desires").
~~
Basic interests indude food,
water, shelter, secuntv, love, play, creative expression, intimate relationships
with nature8' and spintual g r o ~ t h . ~ ~
Non-basic interests mav be either exploitive or non-exploitive. An exploitive
non-basic interest ("exploitive interest") is one in which the interest is, in and
'' Interests are "objects, events or conditions [which] serve to presenreor protect to some
degree" the natural existence of an entity. See ibid. at 270.
''
Basic interests are those objects. events or conditions which. if absent. would totally
prevent or severely impair an entity fiorn the fulfilment of its natural existence. For a
biocentrist. the fiMment of natural existence is according to the biological entity's
"species-specific nature''. See Taylor, supra. note 1 1 at 27 1-272.
'' Non-basic interests are those objects, events or conditions which treat entities as
having instrumental, intrinsic or inherent value and, in so doing, destroy, h m or
othenvise interfere urith the filfilment of the natural existence of those entities. See ibid.
at 273-277.
84 It has been hypothesized that there is a direct relationship between psychological,
sociological and cultural well-being of humankind and the ability of humans to bond with
nature, much in the way that children are able to bond with their mothers and other
significant persons. See H.F. Searles, "The Role of the Non-Human Environment" in
Shepard & McKinley (Essays), supra, note 21 at 80 and D. Cayley, The Age of Ecoloo:
The Environment on CBC Radio 'sjdeus (Toronto: James Lonmer, 199 1) at 16- 1 8
(conversation with Paul Shepard). This thesis is fully developed in P. Shepard, Nature
and Madness (San Francisco: Sierra Club Books, 1982).
See e.g., DevaIl& Sessions, supra, note 2 at 68-69,70-7 1.74 and 129, and Livingston
(Fallacy), supra, note 20 at 80-8 1.
85
61
of itself, "inherently incompatible with the attitude of respect for nature'?
For a biocentnst, projects undertaken to satisfv exploitive interests include
killing or captunng biological entities so that the entity or its pans can be used
for pnvate collections, for fashion and luxury products or for recreational
enjoyrnent.*' A non-exploitive non-basic interest ("non-exploitive interest") is
one in which the interest is not, in and of itself, "incompatible ~ l t the
h
attitude of respect for nature".88 Projects undertaken to satis9 non-exploitive
interests inchde h a m to, or interference with, non-human entities in order to
constmct structures for housing and public utilities and for commercial,
governmental and cultural activities; For developing outdoor recrearional areas
such as parks and wilderness areas, and for growing food.s9
lis) lustification of the Proiect
To deterrnine whether a project is justified, a biocentrist look to the nature of
the human and non-human biological interests affected bv the project, with a
-
86
See Taylor, supra, note 1 1 at 274.
See ibid. at 273-276. Generally, projects for the furtherance of exploitive interests are
motivated sole1y by profit and other persona1 benefit. Exploitive projects include
foraging, hunting and fishing for sport.
"
See ibid at 274. Projects undertaken to satisfi non-exploitive interests generally have
sorne element of public benefit.
89
62
view to adhenng to the prim fade moral duties flowing from the attitude of
respect for nature. Where a project gives rise to a conflict between non-human
basic interests and human exploitive interests, there can for a biocentrist never
be any justification for the projea?'
Shouid such a conflict present itself,
humans with an attitude of respect for nature \vil1 neither undertake projects
intended to fulfil exploitive interests nor support, condone or othenvise
participate in such projects.
Where a project gives rise to a conflict between non-human basic interests and
human non-elcploitive interests, the project will be justified if the nonexyloitive interests are determined bv a human comniunity to promote and
presenre the instmmental, intrinsic or inherent values of central importance to
that c o r n r n ~ n i t ~Where
.~'
a project merits central importance in a conirnunitv,
it will be undertaken only if the course of action for implementing the project
is the one vvhich results in "the lowest number of violations" of the
fundamental dutv not to do harm to non-human biological entities-in-
While values of central importance will Vary according to their ment within a
comrnunity, their basis is simila.:"the goals and practices that f o m the core of a rational
and informed conception of a comrnunity's highest values?'.Taylor, supra, note 1 1 at
28 1 . On instrumental, intrinsic and inherent values, see supra, note 12.
9'
63
e c o s y ~ t e r n sand
, ~ ~ if restitution is made for breach of this pnnin fncir d ~ t v ~ ~
("principle of minimum wrong") .94
Where a project gives nse to a conflict between the basic interests of non-
, ~ ~project may be undertaken only if the conflict
humans and h ~ r n a n sthe
cannot be avoided. Where such a conflict can be avoided, "situations of
rivaln, and cornpetition [should be transfomed] into patterns of mutual
accommodation and t ~ l e r a n c e " .Where
~~
such a conflict is unavoidable, as in
circumstances where a limired quantity of food is available to meet the basic
interests of both human and non-human biological entities, the project is
justified if the subject matter of the conflict is distributed in such a mariner
that each panv to the conflict "is alloted an equal share" of the subject
matter," wliere possible; if restitution is made for breach of this prinlnjhcir
'9
Taylor, supra. note 1 1 at 282-283.
93
Ibid at 386-287.
See generally, ibid.at 280-29 1.
The most common sources of this class of conflict occur where hurnans require nonhuman biological entities for food and shelter or physical entities for air, water and
shelter, and where the survival of an individual biological entity, a species population, a
habitat, a physical entity or the relevant ecosystem itself is at stake. See ibid. at 293-297.
95
96
Ibid. at 296-297.
97
Ibid. at 292.
64
dutygs ("pnnciple of equal d i ~ t r i b u t i o n " ) and
; ~ ~ if human action in undenaking
such projects is "guided by the pnnciple of minimum wrong .100
Cornplex, intractable disputes ofien anse which cannot be resolved solelv
+
bv
.
resoning to these principles of conflict resolution. In these cases, a biocentrist
looks to the "ethical ideal" which underlies the principles of conflict resolution,
i.e., the biocentric "best possible w ~ r l d " , and
~ ~ ' asks what course of action
would be taken in "a world order on our planer where human civilization is
. rhis ideal world, "human
brought into hannonv wlth n a t ~ r e " ' ~ ' In
civilization" is "the total set of cultures on Eanh at any given time", sharing
and deiiionstrating the attitude of respect for nature;lo3and "hannonp" is a
state of affairs such that al1 human action complies n i t h the basic biocentric
duties of avoidance of harm to, and interference with, biological enrit';es-inecosvstems. and is y i d e d by the principles of conflict r e s o l u t i o ~ i . ' ~ ~
98
Ib id.
P9
See generally, ibid. at 29 1-297.
'O0
Ibid. at 294.
'O1
Ibid at 264.
'O'
Ibid. at 308.
'O3
Ibid. at 308-309.
Ibid. at 309-3 1 0.
[c) lm~lementationof the Proiect
In determining the appropriate measures for the implementation of justifiable
projeas, a biocentrisr, in light of the goal of preservation, looks for methods
which will have a "minimum rather than maximum impact" on biological
entities-in-ecos~stern~.'~~
The strategies employed wivill va.
according to
whether the human interest under consideration is non-exploitive or basic.
'O5
Devall & Sessions, supra, note 2 at 68.
-- Stratepies to Eliminate Harms and Demadation
For conflicts involving non-exploitive human interests and requinng
application of the principle of minimum wrong, the aim of biocentric
management is t o elirninate both the hamslo6done to non-human biological
entities-in-ecosystems, species populations, natural habitats and ecosystems,
and the degradationiO' of ecosvstems. Biocentric strategies focus on the
elirnination of direct killing of non-human biological entities, harms t o habitats
and degradation of ecosystems. 'Og
Direct killing of non-human biological entities is the intentional destruction of
such entities; indirect killing, in contrast, may arise from harms to habitats
and ecosvstem degradation.109To eliminate direct killing, a biocentrist first re-
examines the question "whether the human values are reallv wonh the exrreme
cost being imposed" on non-human biological e n r i t i e ~ . ' 'If
~ the answer is
'O6
In this study, h m s include destruction, injury and depletion.
In this study, "degradation" means any change to the natural conditions of an
ecosystem through the introduction into that ecosystem of foreign matenals by
humankind.
'O7
'O8
See Taylor, supra, note 1 1 at 287-291.
'O9 Ibid. at 290. An example of direct killing of animals is the death of laboratory
animals for scientific, educational and research purposes. An example of direct killing of
plants is the use of chemical biocides to kill road-side plant growth. Ibid.
Ibid at 290-29 1. Proponents of animal nghts would argue that it is never appropriate
to kill certain animals, particularly mamrnals. See P. Singer, Animal Liberarion. 2d ed.
'lu
67
affirmative, alternatives are sought which will satisfy the human interest, while
destroying the least number of non-human biologicd entities. '
''
The need to eliminate the h a m s to habitats is more pressing because these
h a m ~ soften lead to the d e s t ~ c t i o nor depletion of species populations and
ecosystems. A major biocentric policy in this regard is to avoid any future
"massive" development projecr, on the grounds that what remains of the
biosphere is necessanr for the survival of the biosphere and al1 biological
entities in it.
' l2
Contemporary alternatives ro traditional pracrices for
eliininating harm to habitats include the designing and planning of human
living. working and recreational structures and spaces so that thev become
integrated with nature to as great an extent practicable, thereby preseming the
(New York: New York Review Books. 1990) and T. Regan. supra, note 58. While
making valuable contributions in their own right. neither of these ground-breaking
volumes is particularly supportive of the biocentric moral perspective. Singer's position
is utilitarian and, therefore, sacrifices the right of the individual to the welfare of the
group. Regan takes a rights-based approach supported by a concept related to inherent
worth ("subject-of-a-life"), but excludes from the application of this concept al1 plants
and most animals. See Regan, ibid. at 243-248 and 264.
Taylor, supra, note 1 1 at 291. Some or all killing of animals for educationai, scientific
and research purposes could be avoided through the development of alternative methods
of obtaining the sarne information. See Regan, supra, note 58 at 364-392. Killing of
road-side plant growth with chernical biocides could be replaced by ernploying hurnan
labour to cut the plants before they pose safety hazards to road users.
Il1
"'Devsll & Sessions, supra, note 2 at 129.
68
integrity of ecosystern~;~
l 3 the development and irnplementation of projects
within smaller, autonomous communities based, if possible, on natural land
divisions, also k n o m as bi~regions;~~''
the reuse of inhabited regions when thev
"are in a detenorating state or have been abandoned", as an alternative to
developing untouched natural lands~apes;''~
controlling population growth;' l b
and changing "habits of consumption""ï and rnaterialist expectations'18.
I l 3 "I believe that ecology provides the single indispensable basis for landscape
architecture and regional planning [and] ... has now. and will increasingly have. a
profound relevance for city planning and architecture. ... I Say that any project. Save a
small garden or the raddled heart of a city where nature has long gone, which is
undertaken without a full comprehension and employment of natural process as formgiver is suspect at best and capriciously irrelevant at worst." I.L. McHarg. "An Ecological
Method for Landscape Architecture" in Shepard & McKinley (Science). supra. note 19.
328 at 328 and 330. See also. Taylor, supra, note 1 1 at 299.
Il'
Every natural environment has "an appropriate expression of physical process ... .
One would then expect to find distinct morphologies for man-nature in each of the major
physiographic regions". 1. McHarg. "Values, Process, and Fond' in Disch. supra. note 1.
21 at 34. See also, Naess, supra, note 48 at 98; Devail & Sessions. supra. note 2 at 145146. and D. Oates, Earth Rising: Ecological Belief in a Scientific Age (Corvallis. Or:
Oregon State University Press, 1989) at 16 1- 162.
H5
Taylor, supru, note 2 at 287.
I l 6 "Present rates of population growth cannot continue. They already compromise many
govemments' abilities to provide education, health care, and food security for people.
much Iess their abilities to raise living standards." World Commission on Environment
and Development, supra, note 28 at 95. See also. D.H.Meadows et al., The Lirnits ru
Growih (New York: SignetNew American Libraiy, 1974).
Il7
Taylor, supra,note 1 1 at 288.
'
See Oates. supra, note 1 14 at 154- 15 5 .
69
To eliminate ecosystem degradation requires both the removal of al1 foreign
matenals introduced by humans into ecosystems, particularly pollutantsl 19,
and a prohibition on the hirther introduction of such matenals. WhiIe
elimination is the "ultimate goal",'20 a biocentrist acknowledges that the
changes in attitude and the development of appropriate operational methods
and technological design take time and that "interim management measures"
for the minimization of ecosystem degradation are required in the short-
terni.'"
Biocentric strategies for eliminating ecosystem degradation include
development and implementation of degradation-free technologies;"'
development and implementation of appropnate industrial manufactunng and
production technologies that are "carefullv controlled. small-scale [and]
In this study, bbpollutants"means those matenals which, when introduced into
ecosystems, cause h m to, or interfere with. the fulfilment of the natural existence of
entities-in-ecosystems.
Il9
"O
Taylor. supra, note 1 1 at 289.
See Devall & Sessions, supra, note 2 at 156-157. See also, Taylor, supra, note 1 1 at
289.
"' Degradation-free technologies, or "clean" technologies, contribute to the restoration
of the biosphere to its pristine state, to the extent possible. See S. Keller, "Ecology and
Community" (1 992) 19 Env. Aff. 623 at 63 1-632. "Soft" technologies are a class of
clean technology. They contribute to biosphenc restoration by reliance on enera sources
derived fiom wind, sun and water (wave) to replace reliance on the degrading (and
depleting) "hard technologies based on the use of coal, oil. gas and uranium. See A.
Lovins, SuJ Energy Paths: Towards a Durable Peace (Harmondworth: Penguin, 1977) at
38-39,42-45 and 148-152.
simplified ";I z 3 removal of foreign materials from degraded ecosystems ;
reduction of human waste products and elimination of toxic wastes for which
there are no safe methods of di~posal;"~
and changing "habits of
consumption"
"'and materialist expectations
lZ6.
-- Stratepies to Minimize Proiect I m ~ a c t
Where conflicts involving the basic interests of human and non-human
biological entities are unavoidable, the aim of biocentric management is to
apply the pnnciple of equal distribution in order to minimize, to as great an
extent possible, the impact of human projects on entities-in-ecosystems.'"
Strategies for achieving mininiuni impact inciude wilderness preservation,
restoration, rotation, common conservation and design with nature.
'
Taylor. supra, note 1 1 at 290. The aim of appropriate technologies is to overcorne the
tendency of business and industry to grow simply for the sake of growing, by asking what
size of enterprise is needed in any situation and what technology is appropriate for
fulfilling a particular human interest E.F. Schurnacher, SmaZI Is Beautiful (London:
Abacus, 1974) at 52-55. See also, Taylor, ibid. at 289-290; Oates, supra, note 1 14 at 166168, and G. McRobie, Srnall Is Possible (New York: Harper and Row, 198 1 ).
See Taylor, supra, note 11 at 288-289. In this study, a safe method of disposa1 is one
which will not now or in the future cause h m to, or interfere with, the fulfilment of the
natural existence of entities-in-ecosystems.
"' Ibid.at 288.
'26
Oates, supra, note 1 14 at 154.
"' See Taylor. supra, note 1 1 at 296-304.
71
Wildemess preservation is the permanent setting aside, for the exclusive use of
non-human biological entities, of specific habitats or ecosystems which have
been subject to no or minimal interference by human intervention and which
are large enough to ensure the healthy, uninterrupted promotion of
bi~diversity."~For a biocentrist, wilderness presenration enables non-human
biological entities to receive their fair "share of the benefits of the Eanh's
physical environment" (i-e.,physical entities-in-ecosystems) and to exist "free
from hunian interfe~ence"."~Wildemess preserves are not only necessa.
for
the benefit of non-human biological entities, but are considered necessanr for
the fulfilment of basic huinan inter est^."^
Restoration is the process bv which habitats or ecosvstems subject to human
use are relinquished and given over pem~anentlvfor the exclusive use of nonIiuman biological entities. Restoration is essentiall~.a process of rehabilitation
during which non-human biological entities are reintroduced into a region
foxmerly used by humankind, and humankind contributes, to as great an
''*
Ibid. at 297 and Devall & Sessions, supra, note 2 at 1 10.
See Taylor, ibid. and Devall & Sessions, supra, note 2 at 126- 129. See also,
Livingston (Fallacy), supra, note 20 at 17- 18.
"9
-
See Rolston III, supra, note 20 at 12 1- 128 and Devall & Sessions, ibid. at 1 1 1 114.
See also, Taylor, ibid. at 297, n.1 1.
72
extent possible, to the recovery of the habitat or e c o y t e m . Once restored, the
region becomes a wildemess preserve and is treated a~cordingly.'~'
The rotation strategv is similar to that of restoration, except that human and
non-human biological entities "tak[e] tums" in occupving and using a
region.13' With rotation, an entire habitat or ecosystem is subject t o human
use for a functionally suitable period of time in order to satisfv basic human
inter est^."^ During the period of human occupation and use, hami to, or
interference with, the fulfihent of the natural existence of non-human
biological entities-in-ecosystems is according to the principle of mininiuni
wrong, where p~ssible.'~'To ensure minimum impact, human activities are
~~
the hurnan occupation
subject to "strict monitoring and c o n t r o ~ " . 'CVhen
and use has ended, the designated area is given over to the exclusive
occupation and use of non-human biological entities for their benefit, with
13'
See e-g.,Devall & Sessions, supra, note 2 at 152-156.
'"
Taylor, supra, note 1 1 at 301.
133
Ibid
'j4
Ibid. at 303.
'35
Ib id.
humans contributing to any rehabilitation which may be necessary.136 This
process rnay be repeated.13'
The common conservation of non-human biological entities and physical
entities used bv both human and non-human biological entities is limited to
circumstances in which a threat is posed to the basic interests of members of
one or both of the classes of human and non-human biological entities?
On
this basis, the biocentrist acts contranr to the fundamental biocentric
management goal of preservation and conserves these shared natural
"resources", or biological and phvsical sources'39. Because common
The principle of rotation could apply to projects in which a habitat is used to mine a
mineral essential to human health, an underwater habitat is used for scientific studies
required to funher basic human interests and a habitat is used for locating temporaq
housing structures. See ibid. at 302-303.
'j7
'31
See ibid. at 298-299. See also, supra, text accompanying notes 95-100. The need for
cornmon conservation will arise in circurnstances where there are limited supplies of
water, air, food or shelter.
t 3 9 For the biocentrist. non-human biological entities and physical entities are not only
natunl resources, but also a "source of values". Rolston III, supra, note 20 at 121. For
the use of "sources" as natural "sources of value" which contribute to the understanding
of humankind's relationship with nature, see ibid. at 1 18-142. Physical "sources" are
those physical entities which are accorded respect as elements of an ecosystem for their
value in contributing to the fulfilment of the naîural existence of biological entities.
Biological "sources" are those non-human biological entities which, in addition to being
respected as biological entities, are accorded additional respect on the basis of their value
for satisfying basic human needs. This superadded respect is evidenced much in the same
way that aboriginal peoples respect the biological entities they use to satisfj their basic
74
consenration is undenaken with an attitude of respect for nature. the humans
will share and conserve these sources, where possible. for the mutual benefir of
a11 biological entities. with as little harm, depletion or degradation as possible
to the sources-in-ecosystems.'40
The strategy of designing with nature is an attempt to hannonize human
projects nlth their natural surroundings so that the integritv of ecowstems is
preserved."" This strategy funhers the implementation of projects involving
both human basic interests and non-exploitive hunian interests1"' by stri\lng to
avoid the destruction of habitats or ecosvstems and by enabling certain species
populations to fulfil their natural existence free froni human interferen~e."~
liii) Restitution for Breach of a Prinîn Facte Moral Dutv
It
will be recalled that a duty exists to make restitution for breach of the priiiirr
fncir dutv to avoid hami to, or interference with. the fulfilnient of the natural
interests. See Alan Herscovici, Second Nature: The Animal-Righis Controversy
(Montreal: CBC Enterprises, 1985) at 56-67and Devali & Sessions, supra, note 2 at 9697.
See Taylor, supra, note 1 1 at 298-299.
'"
See supra, text accompanying notes 8 1-89.
IJ3
See Taylor. supra, note 1 1 at 299-301.
75
existence of non-human biological entities-in-ecosy~tems'~'
and that the dut?
to make restitution applies to every project that is implemented according to
the principles of minimum wrong and equal di~tnbution'"~.
This dutv is owed
to non-human biological entities, species populations, habitats, physical
entities and ecosystems.
Restitution is made bv "promoting or protecting" the natural existence of nonhuman biological entities-in-ecosysterns, according to the nature of the subject
of the hami.li6 Generallv, strategies for restitution indude (i) rehabilitation of
individual non-human biological entities to a healthv state, if the harm
suffered arises from human causes;i4i (ii) wilderness preservation for the
protection of species populations, habitats and ecosystems;li8 (iii) restoration.
rotation or common conservation for the protection of endangered and
'44
See supra, text accompanying notes 69-74.
'45
See supra, text accompanying notes 92-94 and 96-99.
'"
See Taylor, supra, note 1 1 at 1 87- 1 88.
'41
Ibid. at 198.
'41
On wildemess preservation, see supra, text accompanying notes 128- 1 30.
76
threatened species
degraded
and (iv) restoration of ecosystems to non-
condition^'^^.
Where an individual non-human biological entitv is harmed, restitution
consists of the rehabilitation of the entitv to its condition prior to the harm.
Where such an entity is kdled or cannot be rehabilitated, restitution consists
of the protection or promotion of the fulfilment of the natural existence of the
remaining members of its species population and its habitat.'"
Where a species population is destroved or depleted beyond the point of
regeneration, restitution is made bv giving "pem~anentprotection to al1 the
remaining members" of t h x species or bv giving liniited protection until the
species re-establishes it~elf.'~'In these cases, depending on the nature of the
species, the extent of its endangement and the nature of the human interest.
resort could be had to one or more of the biocentnc management strategies
149 On restoration, rotation and comrnon conservation. see supra, text accompanying
notes 131- 140.
lS0
"'
'
On restoration, see supra, text accompanying note 13 1.
See Taylor. supra, note 1 1 at 188.
Ib id.
77
used t o minimize the impact of human projects which give nse to conflias
between the basic interests of human and non-human biological entities.lS3
Where a habitat or ecosystem is panially destroyed, restitution is made bv
restoration, to the extent possible, of the habitat or ecosystem to its condition
pnor t o the harm.Is' Where a habitat or ecosystem is totally destroyed,
restitution is made by the preservation and promotion of the fulfilment of the
natural existence of non-human biological entities in a habitat or econ7stemof
the same type,''' by means of one or more of the strategies used to resolve
conflicts between non-human basic interests and non-exploitive human
interests,lS6or by the ~ d d e r n e s spreservation of one or more pristine natural
regions which are threatened by human projects'
''.
15)
See supra, text accompanying notes 127- 143.
Is4
On restoration, see supra, text accompanying note 131.
Is5
Taylor, supra, note 11 at 189-190.
IJ6
See supra, text accompanying notes 106- 126.
Taylor. supra, note 1 1 at 191. On wildemess preservation, see supra. text
accompanying notes 128- 130.
'51
PART TMrO:
EMERGING PRINCIPLES AND PRACTICES
OF INTERNATIONAL ENVIRONMENTAL LAW
Part One provided an overview of the physical parameters and moral
perspectives applicable to international environmental law. In so doing, a
foundation has been laid for the development of an international legal réginie
for environmental protection, applicable to humankind's activities in outer
space, on the Moon and on other celestial bodies. The purpose of Part Two is
to describe the emerging principles and practices of international
environmental law on which such a régime can be based.
Chapter III reviews and analyses the four basic principles of international
entironniental law in order to develop a biocentnc approach for addressing
environmental issues in both the terrestrial and outer space environnients.
Chapter IV describes the general principles and techniques for managing
ecosystems and proposes a régime for management of the biosphere in accord
with the biocentnc perspective.
CHAPTER III: BASIC PFUNCIPLES OF INTERNATIONAL
ENVIRONMENTAL LAW
International environmental law is a relatively new field of law, having begun
in 1972 with the United Nations Conference on the Human Environment
which provided a fomm for consideration of global environmental problems.
Since then principles and practices, binding and non-binding international
instruments, as well as scholarly treatises and periodical literature have been
generated at a dizming rate. After more than two decades, it is possible to
discem certain basic principles, not sufficiently settled to be regarded as
general legal pnnciples, but with enough support and substance to be treated
as emerging principles of international environmental law.
In this studv, four basic pnnciples of international environmental law are
identified. Thev are considered basic because without the111 it is unlikelv that
adequate protection would be available for the global and outer space
en\lronments. The "principle of cornmon biospheric concem" acknowledges
the global nature of environmental problems and the need for transnational
solutions. The "principle of good neighbourliness" holds States internationall\?
responsible for environmental h a m s to other States, the global commons and
other areas of common biospheric concem. The "principle of precautionameasures" emphasizes that environmental protection requires a planned,
prewntive approach. The "pnnciple of sustainable development" calls for
constraints on human conduct in order to prevent environmental hams.
The purpose of this chapter is two-fold: to review the current starus of these
principles and to analvse each of them from the biocentric moral perspective,
so that they can be applied to al1 biological entities-in-ecosvstems.
A. The Princide of Common Concem for the Bios~here
1. Current Status
The fundamental principle underlying contemporary international
environmental law is that of common concern for the biosphere. This
principle is grounded in an understanding of the systemic nature1 of biospheric
functioning? and in a "growing awareness that ecological problems are
p
p
p
p
p
p
p
p
p
p
p
p
p
p
-
-
-
-
-
-
-
-
-
-
-
-
-
-
'
Professors Alexandre Kiss and Dinah Shelton, in their search for a new conceptual
framework for international law "in accordance with present international realities",
adopted a systems approach. A-Ch. Kiss & D. Shelton, "Systems Analysis of
International Law: A Methodological Inquiry" (1 986) 17 Netherlands Y.B.Int'l L. 45 at
46. The systems approach views natural entities, both physical and biological, as "sets of
integrated relationships". Ibid. at 47-5 1. They base their approach on the reality of
subatomic existence as dynamic, interrelated "patterns of process". Ibid. at 49. Professors
Kiss and Shelton apply the systems approach to, inter alia, environmental protection.
Ibid. at 60-67.
"As our understanding of the environment has grown, we have recognized that
agreements need to be directed to conserving ecological systems, not only to controlling
specific pollutants or conserving particular species." E.B. Weiss, "Intemationa!
Environmental Law: Contemporary Issues and the Emergence of a New World Order"
81
problems of whole systemsn3. Not yet fully developed, the principle of
common biospheric concem represents the evolution of a multiplicit~of
concepts involving the relationship among humankind, its goveming
institutions and their effea on the biosphere. The concept can be divided for
analytical purposes into two parts: the relationship between the State and
environmentai protection and the legal characterization of the benefits arising
from the use of natural "resources".
Sovereigntv is a concept of modern public international law, which accords
each State virtuallv unlimited power to make and enforce the law wi thin its
territory4 Global political and economic changes, including increased
(1 993) 81 Geo. L.J. 675 at 690.
It has been suggested that al1 supranational law goveming States is "system-oriented, in
the sense that it stresses the kind of normative system law is, rather than some particular
or exclusive set of power relations as fundamental to the nature of law". N. MacConnick.
"Beyond the Sovereign State" (1993) 56 Mod. L. Rev. 1 at 8. See also, ibid. at 8-10.
E.B. Weiss, "Global Environmental Change and International Law: The Introductory
Framework" in E.B. Weiss, ed., Environmental Change and International Law: New
Challenges and Dimensions (Tokyo:UN University Press, 1992) 3 at 17.
4
See D.J.Fleming et al., "State Sovereignty and the EfTective Management of a Shared
Universal Resource: Observations Drawn from Exarnining Developments in the
International Regulation of Radiocommunication" (1 985) 10 Ann. Air & Sp. L. 327 at
327-330.
82
recognition of biospheric environmental c o n c e r n ~may
, ~ rekindle interest in the
more universalist conceptions6 as advocated by Grotius and vattel'. Indeed,
since the end of Worid War II, the world has seen in the rapid proliferation of
multinational institutions, "a movement away from an international legal order
based solely on absolute sovereigntf' and an agreement by States to "surrender
some of their control" to the international institution established to pursue the
panicuiar supranational concem.'
Increasinglv it is being recognized that "the nature and scope of state
sovereignty or autonomv is undergoing drarnatic change".' States are nonr
more properlv seen as having sole jurisdiction to implement and enforce
Four forces "inexorably undermining sovereignty and the special status that States
occupy in traditional international la~T*
include "(1) the technologica1 changes that are
facilitating the creation of a global economy and global societv; (2) the growing concem
about the environment; (3) the expanding role of international organizations in the world:
and (4) the changing perceptions of peace and security". C. Grossman & D.D. Bradlow,
"Are We Being Propelled Towards a People-centered Transnational Legal Order?" (1 993)
9 Am. U. J. Int'l L. & Pol'y 1 at 10.
A retum to the original ''law of nations" would "more readily signal the diversity and
complexity of the subject". M.W. Janis, "International Law?' (1991) 32 H m . Inr'l L.J.
363 at 372.
' See Janis, ibid. at 364-365.
' Grossman & Bradlow, supra, note 5 at 4-5.
G. Handl, "Environmental Security and Global Change: The Challenge to International
Law" in W. Lang, H. Neuhold & K. Zemanek, eds, Environmentai Protection and
International Law (London: Graham & Trotman, 1991) 59 at 85.
83
legislation deding with matters of exdusively domestic concern, while obliged
to CO-operatewith other States in the resolution of regional and global
common issues, which were formerly considered to be within exclusive State
juri~diction.'~With the removal of the State as sole international law-maker
in a growing number of areas, supranational organizations have taken their
place and, in the process, have dramatically transformed the process of
international lawmaking. ' '
Post-World-War II global changes have denionstrated that traditional State
sovereigntv is not suited to deal with the new situation and that the scope of
sovereigntv requires significant modification to meet the current and future
needs of humanitv." In the environmental foruni, @en the need for a global
perspective to deal effectively with the preservation and well-being of the
'O
Ibid. at 86.
''
See J.I. Chamey,"Universal International Law" (1993) 87 Am. J. Int'l L. 529 at 543550. "~]speciallyin the case of important normative developments ... [rlather than
opiniojuri and state practice, multilateral forums [sic] often play a central role in the
creation and shaping of contemporary international law." Ibid at 543.
'*
See e.g., S.H. Bragdon, 'National Sovereignty and Global Environmental
Responsibility: C m the Tension Be Reconciled for the Consenration of Biodivenity?"
(1 992) 33 Harv. Int'l L.J. 38 1;Chamey, ibid. ;Fleming et al.. supra, note 4; Grossman &
Bradlow, supra, note 5; Janis, supra, note 6; Handl, supra, note 9; A. Kiss, "The
Implications of Global Change for the International Legal System" in Weiss. supra, note
3 , 3 15 at 33 1-3 3 9, and MacCormick, supra, note 2.
84
biosphere and d l of its inhabitants, unlirnited State sovereigntv is clearly an
obstacle to rationai law-making.
Irrevocably fused with the concept of sovereignty are the legal means bv which
States have extended their jurisdiaion and control over natural "resources"
found both within the temtory of a State and beyond.13 Traditionally,
sovereign States had autonomous control over natural "resources" within their
territones, wlth any restrictions on use and exploitation prescribed bv the
State or the legal person with title of ownership to the propertv. Outside State
temtorv another svstem prevailed.
Territories bevond the junsdiction of anv State were originallv charactenzed as
either rcs co~muti.isor rrs ~irtllius.The former were considered the propertv of
all, such as the high seas, and could not be subjected to appropriation; the
l 3 The "principle of permanent sovereignty over natural wealth and resources" means that
"natural wealth and resources located within the temtorial jurisdiction of a sovereign
state belong to the community, Le., the people themselves" and incorporates "the nght of
al1 peoples to fieely use, exploit and dispose of their naturai wealth and resources". S.R.
Chowdhury, "Permanent Sovereignty Over Natural Resources" in K. Hossain & S.R.
Chowdhury, eds, Permanent Sovereignty over Natural Resources in International Law:
Principles and Practice (New York: St. Martin's Press, 1984) 1 at 1-2. See also, K.
Hossain, "Introduction" in Hossain & Chowdhury, eds, ibid ix at ix-xv.
85
latter were considered the property of no State and were subject to
appropriation by satisSing certain criteria. ''
Because res co~~imu~lis
could not be owned, the concepts of use and wufictzis
arose to account for the exploitation of the benefits of their natural
"resources". Title, of course, entitles the orvner to a "fee simplet', as in real
propertv law, and ro the exploitation of al1 natural "resources" found therein.
Usufn<ct is the "right to enjoy the property of another and to take the fruits.
but not to destrov it or fundamentallv alter its character".ls Once the
"resource" has been severed froni the real propeny, zisr$uct vests in the taker
all propertv rights accming, or which niav accrue, to the "fruits", i.e.. the
benefits flowing froni the " r e s o ~ r c e " . 'Use
~ entitles the user to use or
occupation of the property without taking any of its fruits, or benefits." On
this basis, then, States had a coninion interest in the natural "resources" of the
rcs coiirniu~zis.This common interest not onlv manifested itself in the use and
I4
See C.J. Joyner, "Legal Implications of the Concept of the Cornmon Heritage of
Mankind" (1 986) 35 Int'l& Comp. L.Q. 190 at 193-194 and Fleming, supra, note 4 at
327-328.
l 5 L.F.E. Goldie, "Title and Use (and U s u h c t ) -- An Ancient Distinction Too OA
Forgot" (1985) 79 Am. J. Int'l L. 689 at 691-692.
l6
Ibid. at 692.
l7
Ibid.
86
usufBicms of those "resources", but aiso provided for what is now called
environmental protection, in the lirniting condition of usufncctzcs, namely no
fundamental alteration or destruction.
Over time, and with the onset of international political factions vying for
control, use and usufncct of the world's finite endowment of natural
"resources", both "renewable" and "non-renewable",'8 the concept of "cornmon
hentage of mankind" has developed, the concept of "rrs comzuiiis" has
broadened and the concept of "common interest" has emerged.
With the likelihood of deep seabed minera1 rnining and the future possibiIit\r
of miniiig on the Moon, the less developed States, without the financial and
industrial capacitv to carry out such development projects, undertook a
concerted effort to rnodiS the concept of usufr-rcct,giving rise to the concept of
the "common heritage of mankind". This concept incorporates "the idea that
the management, exploitation and distribution of the narural resources of the
area in question are matters to be decided bv the international communitv ...
l8
On the rneaning of "renewable" and "non-renewable", see Chapter II, supra at n.30.
87
and are not t o be left t o the initiative a n d discretion of individual States or
their nationals". ''
What the concept of the "common hentage of mankind" essentiallv does is
replace a n individual State's right of u s u i c t with a communal right to usufncct.
vesting in al1 States the right to share a n v and al1 benefits accruing from
mineral exploitation of a certain area."
T h e less developed States also
argueda that t h e concept of "cornmon hentage of mankind" vested in the
B. Cheng, "The Legal Regime of Airspace and Outer Space: The Boundary Problem.
Functionalism versus Spatialism: The Major Premises" (1980) 5 A m . Air & Sp. L. 323 at
334. See also, Fleming. supra, note 4 at 330-33 1 (general overview); A.J. DoIman.
Resources, Regimes, World Order (New York: Pergamon Press. 198 1 ) c. 5 (origins of the
concept, application to the Law of the Sea Conference, implications for global resource
management); P.L. Saffo, "The Common Heritage of Mankind: Has the General
Assembly Created a Law to Govern Seabed Mining?"l979) 53 Tul. L. Rev. 493 (effect
on customary law goveming seabed mining), and Joyner, supra. note 14 (analysis of the
nature of the concept and its place in international law).
l9
See A. Pardo & C.Q. Christol, "The Cornmon Interest: Tension Between the Whole
and the Parts'' in R.St.J. Macdonald & D.M. Johnson, eds, The Siruazire and Process of
O'
Interna~ionalLaw: Essoys in Legal Philosophy, Doctrine and Theory (Dordrecht, The
Netherlands: Martinus Nijhoff, 1986) 643 at 649-650. While this statement generalizes a
complex situation, it is sufficient for the purpose of placing the concept of the "common
heritage of mankind" in the context of international environmental law.
a For a succinct statement of the positions of the industrialized versus the less-
developed States, see Goldie, supra, note 15 at 695-698 and 712-714.
88
international community titular rights of ownership in al1 the minerai
resources contained in the deep seabed."
In effect, the common heritage of mankind imposes a prohibition against
mineral "resource" development unless the global communitv consents to such
a project, but does not modih. the condition that the "fmits" are to be neither
destroyed nor fundamentally altered.
In contemporarv environmental parlance, the concept of res con~n~zr~zis
has been
replaced bv "global commons". Regularlv mentioned as examples of global
commons are the high seas, air space b e o n d national jurisdiction, outer space,
--n Ownership does not appear necessary, however, in order for non-industrialized States
to receive the benefits which the "common heritage of mankind" was intended to deliver.
See Goldie, ibid. at 702-704. Ascribing ownership is not desirable from the biocentric
perspective because it only legitimizes domination of non-human biological entities and
exploitation of physical entities.
the deep seabed, the atmosphere and ~ntarctica.'~More recent additions
indude the ozone layer and the global ~ I i r n a t e . ~ ~
The inclusion of Antarctica in the list is, from a historical perspective,
puzzling, given that the continent !vas originally res nullius. If Antarctica were
rrs coniniuniî, then the existing daims of sovereign title to most of the continent
would be invalid?
Increasingly, however, areas once considered to be res
~iiillius,and even those claimed by seven States, are treated as part of the global
cornn~ons.'~Whether this new status makes Antarctica defacto res cuniniu~~is,
or
something else, is not dear."
''
See eg A. Kiss, "The International Protection of the Environrnent" in Macdonald &
Johnson, supra, note 20, 1069 at 1084; United Nations Environrnent Programme
[hereinafier UNEP], Background Paper Number One, Environrnent and Trade. "Concepts
and Principles in International Environmental Law: An Introduction" (Draft) September
1993, at 3-4 [hereinafter UNEP Dra) Principles]; Organization for Economic Cooperation and Developrnent [hereinafier OECD], Environment Directorate & Trade
Directorate. Joint Session of Trade and Environment Experts. Environmental Principles
and Concep» (Draft) COM/ENV/TD(93) 1 17IREVl (25 May 1994) para. 22 [hereinafter
OECD Drap Principles]; P.W. Birnie & A.E. Boyle, International Law and the
Environment (Oxford: Clarendon Press, 1992) at 9 1, and K. Leigh, "Liability for Damage
to the Global Cornmons" (1 993) 14 Austl. YB.IntolL. 129 at 130.
24 See e.g., Kiss, ibid.; UNEP Dr& Principles, ibid. at 4; OECD Draft Principles. ibid.
and Leigh, ibid Birnie & Boyle. ibid, more properly leave these areas for consideration
as "common concems". See infia, text accompanying notes 28-34.
" Leigh, ibid. at 133.
26
See Weiss, supra, note 2 at 704.
"
Leigh, supra, note 23 at 133.
The changing legal status of Antarctica and treating the ozone laver and global
climate as res comnrunis are indicative of a recent trend relating to the
junsdictional cornpetence of sovereign States. This trend finds its legal
expression in the concept of "common concern". Areas of common concem
have been identified as the ozone laver, the global climate, tropical forests and
world heritage areas." Areas of common concem encompass both res corniriunis
and al1 other temtories within the exclusive State jurisdiction which raise
environmental concems with implications for the well-being of the biosphere
and, hence, for the s u ~ v a of
l h ~ r n a n k i n d . With
~ ~ this characterization, areas
nlthin territorial jurisdiction become the subject of international a t t e n t i ~ n . ~ '
In a manner analogous to the cornmon hentage of maniund in res coniiiticiris
areas, areas of common concem within exclusive State control become
legitiniate subjects of international management for the benefit of
huniankind.
'
'' Ibid
29
Bimie & Boyle, supra, note 23 at 85.
30
"'Cornmon concem' is the term first used by the CTN General Assernbly to justi@
treating the global climate as a unity, regardless of national sovereignty over subjacent
airspace and land temtory: Its most important implication is that it places the protection
of these areas or phenomena on the intemationai agenda and makes them the legitimate
object of international attention, ovemding the reserved domain of domestic jurisdiction
or the possible contention that they related to matters within the exclusive sovereignty of
individual states." Ibid.
31
OECD Draft Principles, supra, note 23 at 12.
91
The concept of "common concem", then. may be ~ l e w e das applying to al1
environmental concems which require intemationai action for efficient and
effective r e s ~ l u t i o n .From
~ ~ this perspective, the heretofore distinct global
commons combine to become the b i ~ s ~ h e r Correspondingly,
e.~~
areas of
common concern include al1 res carnnrtinis, because no individual State has the
authonty to take action, and al1 res nullius and State temtow where
environmental concems of a transborder and other non-exclusive jurisdictional
nature are raised. in its application to the biosphere, the concept of cornmon
concem encompasses both biological and phvsical "resources" and, where
appropriate, entails the management of the allocation of anv benefits to be
derived from these "resources" according to the concept of "conmon heritage
of mankind".3" Such a characrerization simplifies the conceptual approach to
environmental concerns, eliminating debates over the geophvsical location of
environmental concems. For esample, the phenornenon of global warniing is
believed to be caused bv excessive human-made gases. Because global wamiing
affects the suMval of humankind. the question whether those gases are located
"
Kiss, szrpru, note 23 at 1084 and Leigh, supra, note 23 at 147.
'' Leigh, ibid. at 148.
'" "The basic principle is that such elements of the world should be conserved and in
order to do so they must be correctly rnanaged, in the interest of present and future
generations." Kiss, sapra, note 12 at 335.
92
within or outside the boundaries of any States is no longer in issue. Rather,
the debate addresses the best way for the global communitv t o remedy the
common concem of global warming.
2 . Biocentric Critiaue
For the purpose of addressing environmental issues,35the concept of common
concem for the biosphere supports the biocentric moral perspective, which
requires recognition of the biological nature of humanity. On a global level,
this biological nature finds its expression in the ecological, svstemic premise
that the "intimate interdependence of the phvsical and biological realrns of
existence is what any ecosystem depends on for its ~ u n i v a l " ~ The
?
concept of
common biospheric concem also acknowledges the need for international
action to deal with environmental problenis regardless of their geographical
location.
The concept of "common concem" has thus far been limited to maners of international
environmental law. The common concem, or the "intemationally shared interest in
environrnental protection", is just one of three facets of the generic concept of "common
interest", which is found in public international law. See J. Brunnée "gCornmonInterest' - Echoes from an Empty Shell?: Some Thoughts on Common Interest and International
Environmental Law" (1989) 49 Heidelberg J. Int'l L. 791.
35
36
Chapter II, supra, text accompanying notes 50-5 1.
The concept of "common biospheric concem" is inadequate, however, with
regard to the second basic premise of the biocentric perspective, namelv, that
the equivalent inherent worth of al1 biological entities entitles them to
equivalent respect for their existence in nature and to the fulfilment,
promotion and protection of their natural existences3' The status of human
and non-human biological entities as morally equal also means that al1
- humankind to promote and protect rheir
biological entities are owed a dutv, bv
natural existence according to a standard based on the needs of al1 biological
entities, not just hun~ankind.'~In contrast, anthropomorphic interests are the
sole objective of current international environmental l a d 9 and its conceptual
bases, such as "common biospheric c ~ n c e r n " ~The
~ . human-centred focus for
reinedving environmental concerns entails protection of the interests of
humankind for current and future generations, with consideration given to the
interests of non-human biological entities onlv where thev are necessanr for
meeting the needs of humankind.
-
--
"
Ibid. at Section C. 1(b).
j8
Ibid ,text accompanying note 55.
A. Kiss & D. Shelton, International Environmental Law (Ardsley-on-Hudson. NY:
Transnational Publishers, 199 1) at 10- 1 1.
39
'O
"While initially directed at climate change, [the concept of common concern] was
subsequently adopted to refer to the protection of the environment generally, including
living resources, as the comrnon concem of humankind''. Leigh, supra, note 23 at 147.
That the biocentnc approach is not vet recognized as a basis for international
environmental protection is demonstrated by Pnnciple 1 of the Declrirntioii
oii
Development and the Environment [Rio Declnratio~t1, adopted in 1 992 by 1 78
states at the Rio C ~ n f e r e n c e . ~Principle
'
1 of the Rio Drc1arritiori4' states in
pan: "Human beings are a t t h e centre of concems for sustainable
''
See UNEP Draft Principles, supra. note 23 at n.2. See also, G.P.Supanich, "The Legal
Basis of Intergenerational Responsibility: An Alternative View -- The Sense of
Intergenerational Equity" (1992) 3 Y.B. Int'l Env. L. 94 at 103 and OECD Drafi
Principles. szcpra, note 23, para. 6.
The United Nations Conference on Environment and Development [hereinafter O'.krCED]
took place in Rio de Janeiro, Brazil. in June 1992. Known as the Earth Summit. the
Conference is a descendant of the Stockholm Conference via the 1986 World
Commission on Environrnent and Development. P.H. Sand, "UNCED and the
Development of International Environmental Law" (1 992) 3 Y.B.Int-1 Env. L. 3 at 3.
The World Commission's report required that "some guidance should be given in the
form of general principles to govemments and to peoples, in particular conceming the
institutional and legal aspects of common action". A. Kiss, "The Rio Declaration on
Environment and Development" in Luigi Carnpiglio et al., eds, The Environment afrer
Rio: Iniernational Law and Economics (London: Graham & Trotman, 1994) 55 at 55.
The purpose of the Earth Summit was to address "the environment and the relationship
between environment and developrnent, which involves the potential for sustainrd gronth
inflicting the least possible damage on the environment as population grows and
individual consumption increases". E. Richardson, "Prospects for the 1992 Conference on
the Environrnent and Development: A New World Order" (1991) 25 J. Mar. L. Rev. 1 at
2. With the adoption of the Rio Declaration, the Biodiversity Convention, the Climafe
Change Convention and other instruments, the Earth Summit "may be seen as another
incremental step in the evolution of international environmental law". Kiss, ibid. at 56.
'' Rio Declurution on Environmeni and Developrnent, 14 June 1992, UNCED Doc.
NCONF. 15 1/S/Rev. 1 (1 W 2 ) ,reprinted in 3 1 1.L.M. 874 [hereinafter Rio Declarafion].
The Rio Declorafion is not legally binding. It is an instrument based on consensus
between the industrialized States, favouring a more biocentric, legally-binding
declaration, and China and the Group of 77 less developed States, interested in
development as a priority. On the positions of the two factions, see C.K. Mensah, "The
Role of the Developing Countries" in Carnpiglio, ibid., 33. On sustainable development.
see infra, Section D.
development." This principle "represents a viaory for the delegates of a
human-centered approach to the Rio D e ~ l a r a t i o n " .While
~ ~ the Northem
States
sought to place the environment at the centre of developmental
concems ... [so that] human beings would be at the service of the
environment and would thus be heid responsible for the well-being of
the environment ... [tlhe South saw a nght to a healthy environment as
having legal implications which would dlow the North to interfere with
the South's development plans. A nght to a healthy environment at
this point would delay the development of human being~.~"
To make the common concem for the biosphere compatible with the
biocentric perspective requires a relatively simple conceprual adjustment, but a
profound psychological one4' -- siniply substitute "biokind" for "humankind":
Conimon biospheric concem would address the needs of biokind. Where
appropriate, anv "resource" projects would be biocentncallv managed for the
benefit of present and future generations of biokind.16
'''J. Kovar, "A Shon Guide to the Rio Declaration" (1993) 4 Colo. J. Int'l L. & Pol'y
119 at 124.
Mensah, supra, note 42 at 4 1 .
"[Tlhere does not appear to be any principled basis why the idea of an extended
community should be limited to homo sapiens and why it should not encompass nature as
a whole. For here the legal recognition of our interconnectedness with nature sirnply
represents a sound, (eco)logical step in the progressive development of our moral and
legal conventions." Supanich, supra, note 41 at 103.
45
'
See Chapter II, supra, Section C.2(b)(ii).
96
Only one international instmment acknowledges t h e equivalent inherent wonh
of al1 biological entities a n d supports biocentric respect for nature, the largelv
neglected World Chnrterfor Nature. Adopted by the UN General Assembly in
1982, by a vote of 111 i n favour with o n e against (United States) a n d 18
abstentions, most of which were from t h e Arnazonian S t a t e ~ , t~h' e World
Charter provides in its Principle 1 that humankind "shall" have respect for
W. E. Burhenne & W.A. Irwin. The WorM Charterfor Nature: A Background Paper
(Berlin: Erich Schmidt Verlag, 1983) at 16. The abstaining States were Algeria,
Argentina, Bolivia, Brazil, Chile. Columbia Dominican Republic, Ecuador, Ghana.
Guyana, Lebanon, Mexico, Paraguay! Peru, Philippines, Suriname, Trinidad and Tobago.
and Venezuela. Ibid. at 97-98.
"
The United States did not submit its comments on the draft World Charter for three
years. On the day that the draft World Charter was debated in the General Assembly, the
United States stated that unless the vote were postponed in order to "work out our
differences in the interest of a consensus text", the US delegation would vote against the
Resolution. The US negative vote was seen in UN circles as "a thinly-veiled pressure
tactic ...that in reality was the product of the recent policy to molli@ South Amencan
nations upset that the US had sided with the United Kingdom in the Falklands matter".
Ibid. at 15-16 . For the US position, see H.W. Wood, Jr., "The United Nations World
Charter for Nature: The Developing Nations' Initiative to Establish Protections for the
Environment" (1 985) 12 Ecology L.Q. 977.
97
nature?
As a UN Resolution, the World Charter is not a legally binding
instrument; it is, however, morally and politically persuasive.
B. T h e Principle of Good Nei~hbourliness
1. Current Status
The concept of "common concem for the biosphere" expands the scope for
international participation in remedving environmental harms. Before the
international communitv can take action against conduct resulting in harm t o
the environment. States, including their natural and legal persons, must be
under an international legal obligation to conduct themselves according to a
specific standard. If a State should breach this standard, that State n d l be
.''Wororld Charterfor Nature, GA Res. 37/7?UN GAOR,34th Sess., Item No. 21. LTN
Doc. A!3 7 5 . 4 and Add. l (1 983), reprinted in 22 I.L.M. 455 mereinafter World Charier].
States inter dia that the General Assembly,
Convinced that:
(a) Every form of life is unique, warranthg respect regardless of its worth
to man,and, to accord other organisms such recognition, man must be
guided by a moral code of action, ...
A d o ~ t s... the present World Charter for Nature, which proclaims the following
principles of conservation by which al1 human conduct afTecting nature is to be
guided and judged.
1. GENERAL PEUNCIPLES
1. Nature shall be respected and its essential processes shall not be impaired.
98
intemationally responsible for its action. The principle of good
neighbourliness provides the necessary legal basis.
The principle of good neighbourliness finds its source in Roman times and
addresses the issue of responsibilitv for one's actions. The Roman principle, sic
utere tuo ut rzlienum norz Zredrs has been translated as: "One must use his onm so
as not to injure anothern4' and "Use p u r own property so as not to injure that
of anothern50. This principle has been "frequentlv referred to in modem
international law" and has been adopted bv civil and common law svstems."
The principle of good neighbourliness was restated in the Co@ Clznizriel case".
In that case, two British warships were damaged by mines in the temtorial sea
of Albania. Albania knew of the presence of the mines, but failed to give anv
general notice of their presence and failed to wam the British ships. The
World Court held Albania responsible under international law for the damage
J . Bmnnée, Acid Rain and Ozone Layer Deplerion: lnternational Law and Regulation
(Dobbs Ferry, NY: Transnational Publishers, 1988) at 87.
49
'O H.M. Kindred et al., lnternational Lnw Chiefly as Interpreied and Apphed in Canada.
4th ed. (Toronto: Emond Montgomery, 1987) at 847.
" Brunnée, supra, note 49 at 87.
" Unired Kingdom v. Albania (Corfu Channel - Merits), [1949] I.C.J. Rep. 4.
because every State has an "obligation not to allow knowinglv its temtonr to
be used contram to the rights of others".j3
On its facts, the Co$ Chminel case is limited to circumstances where the
damage and the act causing the damage both occur in the temtorv of the State
responsible for the act. The T ' r d Smelter arbitrations4enunciated the duty of
each State to prevent its temtow [rom being used to cause injunr ro the
temtorv of another State. A landmark case in the field of transboundary air
pollution, the Trriil Si~irltrr-arbitration arose when sulphur dioxide einitted
from a smelter in the Province of British Columbia. Canada, damaged crops
located in the State of Washington, USA. The smelter operator admitted
responsibilitv for the damage, but was unable to resolve with the defendant the
question of liabilitv for damages. Pursuant to the tenns of the "Convention of
Ottawa, signed April 15, 1935, between the Govemment of the United States
and the Govemment of the Dominion of Canada", an Arbitral Tribunal was
"established to pass upon the daim of the United States for damages to
53
Ibid. at 22.
'
United States v. Canada (Trail Smelter Arbitration) ( 1 93 1-41), 3 R.I.A.A. 1905.
Amencan c i t i z e n ~ " .The
~ ~ Tribunal, in deciding in favour of the United States,
stated in obiter that
under the pnnciples of international law, as well as of the law of the
United States, no State has the right to use or permit the use of its
temtory in such a manner as to cause injury by fumes in or to the
temtory of another or the propenies or persons therein, when the case
is of senous consequence and the injury is established bv clear and
convincing evidence?
This passage is, in spite of its ~imitations,~'
generally considered to state a rule
of customam international law. Taken together, the judgments in the Co@
Clzniinril and Tmil Smelter cases support the view that each State is
internationallv responsible for activities within its remton. which cause hami
to other States.
The sic zttm principle, as emploved in the Corfir Chnmrl and Tmil Sazeltrr cases,
lacks specificitv. The cases themselves have been cnticized as consisting of
A.K. Kuhn, "The Trail Smelter Arbitration -- United States and Canada" (1937) 3 l
Am. J. Int'l L. 785 at 785.
55
56
Trail Smelter Arbitration, supra, note 54 at 1965.
The limitations of this passage are related to the test for darnage and the fact that
Canada had accepted Iiability prior to arbitration. Brunnée, supra, note 49 at 88-89. It is
not settled whether "there was sufficient state practice and opinio juris" to elevate the
Tribunal's finding to a principle of international law. See S.A. Williams. "Public
International Law Governing Transboundary Pollution", [1984] Int'l Bus. Law. 243,
quoted in Kindred et al., supra, note 50 at 840-84 1.
57
"innocuous, general language", with their "effective force ... unclear but almost
certainly ~eak".'~
The scope of international responsibility was expanded funher in Principle 2 1
of the 1972 Stocklrolnl Declnrntim on the Human EnvironmentS9. Principle 2 1
states:
States have, in accordance with the Charter of the United
Nations and the principles of international law, the sovereign
right to exploit their own resources pursuant to their own
environmental policies, and the responsibility to ensure that
activities within their jurisdiction or control do not cause damage
to the environment of other States or of areas bevond the limits
of national jurisdiction.
This principle is now universallv accepted as a mle of customaxy international
la^,^' forming "the foundation of modem international environmental law"."
'' C.D. Stone, "Beyond Rio: Insuring Against Global Warming" (1 992) 86 Am. J. Int'l
L. 445 at 465.
Declaration of the United Nations Confirence on the Human Environment. 16 June
1972, UN Doc. A/CONF.48/144 (1972), repnnted in 1 1 I.L.M. 1416 [hereinafier
Stockholm Declarution]. The purpose of the Stockholm Conference was to "create a basis
for comprehensive consideration within the United Nations of the problems of human
environrnent" and to bring these problems to international attention. L.B.Sohn, "The
Stockholm Declaration" (1973) 74 Harv. Int'l L.J. 423 at 424-425. One idea for
achieving this purpose was to draft a "declaration on the human environrnent dealing with
'nghts and obligations of citizens and Govemments with regard to the preservation and
improvement of the human environment"'. Ibid. at 423-424. This instrument becarne the
Stockholm Declaration.
59
Bimie & Boyle, supra. note 23 at 90-9 1. International Responsibility of States in
regard to the Environment, G A Res. 27/2996, UN GAOR, 27th Sess., Item No. 49. UN
Doc. A1890 1 (1 972) bereinafier UNGA Res. 2994, states that Pnnciples 2 1 and 22 of the
"Its main importance is that it recognizes the duty of states to take suitable
preventiw measures t o protect the envir~nrnent."~'The "damage-causing
activities of States" include not only those occumng in temtory within State
junsdiction, "but also activities conducted bv persons or ships under its
'control', wherever they may act"?
Principle 2 1 of the Stucklzolnl Declnintioïi "attempts to balance the right of a
state to control matters within its territon. with its responsibilitv to ensure
that what is done within that temtory does not cause damage o u t ~ i d e " . ~ ~
Thus Principle 2 1 mav be seen as "pro-environmental protection" because it
liinits State use of its narural "resources" t o the estent that thev would cause
harm to global c o n ~ m o n s .However,
~~
the Rio Dtddrriti~ii,adopted a generation
Stockholm Declararion "lay dowm the basic rules goveming the matter". See also. Kiss &
Shelton, supra, note 39 at 10 and 130-13 1, and Brunnée, supra, note 49 at 92-93.
M.P.A. Kindall, "LNCED and the Evolution of Principles of International
Environmental Law" (1 99 1) 25 J. Mar. L. Rev. 19 at 19-20.
"
'6
Bimie & Boyle, supra, note 23 at 92.
63
Sohn, supra. note 59 at 493.
Ibid. at 485-486. See also, W. Lang, "Environmental Protection: The Challenge for
International Law" (1986) 20 J. World îrade L. 489 at 490. Principle 21 "embodies the
tension between the right to develop and the responsibilities that attach to the exercise of
that right". Kindall, supro, note 6 1 at 20.
'' UNGA Res. 2996, supra, note 60, provides that "states m u t not produce significant
harmful effects in zones situated outside their national jurisdiction". "An overbroad
1O3
after the Stockholm Dedaration, contains language that could either redress the
balance or see the pendulum nving in the opposite direction.
Principle 2 of Rio Declnratio~lduplicates the language of Principle 2 1 of the
StocWtobn Drclnration, except in one important respect. The former has
amended the latter so that the sovereign right of States to exploit their natural
"resources" is now according to "their own environmental and develonmental
policies" rather than according to "their own environmental policies".
Consensus is lacking on the effect of this amendment. On the one hand, there
is the view that with the addition of these two words, Principle 2 1 has rnerelv
"been updated to reflect developmental c o n ~ e r n s " .On
~ ~ the other, the
position has been taken that the Rio Decl~rntionwas expected to be a more
biocentric document. blending the human-centred focus of the Stockholm
Conference with the "more ecological approach of the World Charter for
the less developed countries of the South, whose v i e w
N a t ~ r e " . ~However,
'
interpretation of this sovereign nght [of a State to exploit its resources] would be
inconsistent with the rest of the Declaration which emphasizes the fact that no part of the
global environment can be separated fiom the rest and that it has to be preserved and
improved for the benefit of al1 the people of both the present and future generations. No
state can clairn an absolute right to min its environment in order to obtain some transient
benefits." Sohn, ibid at 492.
66
Kovar, suprn, note 43 at 125.
67
H. Mann,"The Rio Declaration" (1992) 86 Proc. Am. Soc. Int'l L.405 at 409.
1O4
were represented by the Group of 77 ("G-777, took the position that "the
environmental ethos was a tool by which their development was to be held
back?
The effect of this stance "was a decoupling of the rights and
obligations [of Principle 2 11 in order to reverse the perceived priontv of
environment over d e ~ e l o p m e n t " .When
~~
read together with the language of
Principles 3 and 4 of the Rio Declarntio~z,the addition of the words "and
developmental" in Principle 2 raises the question whether development now
has priority over environmental c o n c e r n ~ . ~ ~
Principle 3 of the Ria Declnrntioiiï' States: "The right to developiiient must be
fulfilled so as to equitablv meet developmental and enilronrnental needs of the
present and future generations." It has been suggested that Principle 3 reflecrs
the balance "encapsulated bv the concept of susrainable developn~ent".'~If
this is the case, the balance has shifted in favour of developnient because the
interpretation of "sustainable developrnent", if nothing else, gives prioritv to
-
. .- --
- -
68
Ibid.
69
Ibid.
70
Ibid. at 410.
"
Supra, note 42.
72
Kovar, supra, note 43 at 126.
105
de~elopment.'~The language of Principle 4 of the Rio Derlrirnti~n,~~
as well as
the positions taken by the industrialized nations of the North and bv the
"have-not" States of the South," support this view.
2. Biocentric Critiaue
In approaching the good neighbourliness principle from the biocentric
perspective, the neighbourhood includes al1 human and non-human biological
entities, their ecosvsterns and the relationships inherent in their development
and well-being. A biocentnc good neighbour is one who, in acting out of
respect for nature and the inherent equalitv of al1 biological entities, "strive[s]
to preserve the existence of biological entities by maintaining their natural
ecosvstems and by ensuring that the physical entities in those ecosvstems are
beneficial to a great variety of biotic comm~nities".'~Such preservation is
accomplished bv generally avoiding h a m ~to, or interference with, non-human
73
See infia, text accompanying notes 171- 178, 183-1 85 and 199.
Principle 4 of the Rio Dedaration, supra, note 42, states: "In order to achieve
sustainable development, environmental protection shall constitute an integral part of the
development process and cannot be considered in isolation fiom it."
"
75 The North proposed "to have development be an integral part of environmental
protection . ... [Tlhe South made sure that at no time should the environment be
considered in a way that it would take precedence over development." Mensah. supra.
note 42 at 43. The language of Pnnciple 4 reflects the South's position. Ibid.
76
Chapter II, supra, text accompanying note 60.
1O6
biological entities-in-ecosystems."
At present, international responsibility in
international environmental law does not meet this standard.
In the context of common concem for the biosphere. the responsibiiitv
portion of Principle 2 1 of the Stockholm Declnrntio~ireflects an eniightened
anthropocentric approach. In holding States inremationallv responsible for
damage to territories bevond their jurisdiction and control. Principle 2 1
implicitly acknowledges thar the biosphere and its component ecosvstems are
necessary for the survival of humankind. T h e responsibilitv portion also
dampens the effect of the absolute anthropocentricity found in the
exqdoitation portion of Principle 2 1 because i t limits State projects using their
own natural "resources" so that thev do not "cause" damage bevond their
territories. In so doing, Principle 2 1 does reflect a fundamental requirement of
the biocentric perspective. prevention of adverse effects to the biosphere.
eschelring the tradi tional ex- post facto mode1 of permitting biospheric damage.
followed bv reparation, where possible.
Given the status of Principle 2 1 of the Stockholm Drclizratiori as a principle of
customary international law and its significance in the development of
"
See ibid. at Section C.2(b)(ii).
1O7
international environmental law, it is undear what effect Principle 2 of the Rio
Drclnrntion, read together with its Principles 3 and 4, will have on the future
progressive development of international environmental law. These principles
dearly emphasize the pnority of development over environment. If this
ernphasis is widely accepted, Principle 2 could constitute a regressive legal step
because i t ( 1) fails to acknowledge as valid the concept of common concem for
the biosphere within State jurisdiction; (2) re-emphasizes human interests at
the expense of comnion biospheric concems; and (3) in conjunction with the
newly emerging principle of sustainable developn~ent,'~
could lead to a
practical, if not legal, severance of the connection between developrnental
rights and preventive responsibilities found in Principle 2 1 of the Stoclilioliii
Dt~clzrrrtiutr.
From a biocentnc perspective, Principle 2 1 of the Stocklroliiz Ddm-rrtioii, as
opposed to Principle 2 of the Rio Drclnmtion, is the preferred starting point
because it recognizes that limits to development are necessanr for a healthv
biosphere. Given the current anthropocentric nature of international
environmental law, responsibility for 'hot caus[ing] damage to the
environment" beyond State temtories is for the benefit of humankind. If the
See infa, Section D.
benefit of biokind were the goal, State responsibility would extend to avoiding
biospheric harms that would adversely affect biokind. Transforming the
States' sovereign "right to exploit their own resources" to a biocentric common
concem is more problematic due to the long-standing predominance of the
human self-interest of States in the exploitation portion of Principle 2 1 and,
more recently, the reactionary stance in Principle 2 of the Rio Declnration, with
its apparent pre-occupation with development projects for the well-being of
h ~ r n a n k i n d , 'to
~ the exclusion of environmental concems, if necessa-.
Whatever the strength of this human-centredness, to be biocentncally
acceptable, both environmental and developmental policies of States would
have to demonstrate respect for nature bv removing these policies from
exclusive State domain and into the hands of international decision-makers
who operate with a biocentnc appreciation of the global nature of biospheric
79 The provisions of the Rio Declaration on the nght to developrnent reflect, to a certain
extent, the need for international rnonetary and technological assistance for development
in the South to ease the "poverty, desperation and environmental destruction" found in
many less developed nations: "The North. ravaged by one of the worst recessions in
decades, found itself vimially under siege by the South demanding money in return for
exercising environrnentally safe development." R.K.L. Panjabi, "The South and the Earth
Summit: The DevelopmentlEnvironment Dichotomy" (1992) 11 Dick. J. Int'l L. 77 at
136. Such assistance could result in development which would be less environrnentally
degrading. See R.K.L. Panjabi, "From Stockholm to Rio: A Cornparison of the
Declaratory Principles of International Environmental Law" (1993) 2 1 Den.J. Int'l L. &
Pol' y 2 15 at 235-238. If the developrnentai assistance issues can be satisfactorily
resolved, and if their resolution results in a less harsh effect on the biosphere, it is aiways
possible that the Ianguage of Pnnciple 2 of the Rio Declaration would have little. if any.
"decoupling" effect on Principle 2 1 of the Stockholm Declaration.
1O9
concems and a corresponding understanding of actions necessary to mect the
interests of biokind.
C . The Princi~leof Precautionarv Measures
1. Current Status
I i the good neighbourliness pnnciple requires States not to cause harm to
environments other than their owvn, then in order to abide bv this dutv, States
should have scientific and legal methods available to determine which
substances and activities cause what hami aiid to adduce e~ldencein suppon
cf causation. However, the mu1tipIicitv of interrelated elements inherent in
anv ecosvstem have rendered the traditional methods for fact-finding
inadequate when addressing problems of causation in international
environmental lawv.
In dealing 111th harms to the environment, scientists traditioiiallv have
"emphasized cause-and-effect relationships that can be demonstrated between
substances and the environment, and not relationships that mav exist but
which, despite extensive scientific testing, remain hidden"." Given the
R.M. M'Gonigle er al., "Taking Uncertainty Senously: From Permissive Regulation to
Preventative Design in Environmental Decision Making" (1994) 32 Osgoode Hall L.J. 99
at 101.
funaional complexity of ecosystems, i t is "impossible" to make exact
predictions o n the effects of substances and activities on the behaviour of
e c o ~ ~ s t e m This
s . ~ ~predictive inexactitude has recently been increased
following the rejection by most ecologists of the concept of the "balance of
nature"" and its replacement by a "non-equilibrium" rnodela3. These factual
gaps in scientific knowledge mean that the "cause" of environmental harm
cannot be known with any degree of cenainty. In other words, whether a
particular project will have an adverse effea on the biosphere or one of its
ecosystems is ~ n c e r t a i n . ~ ~
In response to the need to predict the risk of environnienta1 harms, scientists
have developed mathematical and statistical tools to "quantif[v] the
J. Cameron & J. Abouchar, "The Precautionary Principle: A Fundamental Pnnciple of
Law and Policy for Protection of the Global Environment" (199 1) 14 B.C. Int'l & Comp.
L. Rev. I at 2 & n.3.
82 D. Tarlock, "The Nonequilibrium Paradigm in Ecology and the Partial Umaveling of
Environmental Law" (1 994) 27 Loy. L.A.L. Rev. 1 121 at 1 135.
See ibid. at 1 129-1130. The new model is based on fmdings of the "new" physics,
which views al1 natural systems as thexmodynamically open and far from equilibnum.
and which relies on statistical probability for its findings of "fact". See ibid. at 1 1251 13 0. See also, D. Bohm, Quantum Theory (Englewood Cliffs, NJ: Prentice-Hall, 1953)
and 1. Prigogene & 1. Stengers, Order Our ofChaos: Man S New Dialogue with Nature
(Toronto: Bantam Books, 1984). The non-equilibrhm model has a significant effect on
the management of ecosystems. See Chapter IV, infia, Section B.
On scientific uncertainty in environmental regulation, see M'Gonigle, supra, note 80 at
102-1 12.
84
11 1
probability of the kmd of error that is often ignored: failing to detect a
specifîed effea when one is pre~ent".'~These methods estimate harm to the
environment by assessing the statistical probability of a panicular nsk posed
by a specific project to the relevant ecosystem. If the risk is statistically
significant, preventive action mav be taken "upon the scientificallv based
presumption of a causal link 'even when there is no conclusive evidence"' of
such a link?
In these circumstances, management of ecosystems can be based
on forecasting and preventing the possible adverse effects which could arise
from projects, rather than controlling the adverse effects arising from projecrs
subsequent to their irnplernentati~n.~'
Traditionallv, legal standards for proof of causation are "often so restrictive
that, despite strong suspicions of h a m , clear environmental degradation o r
damage to human health must occur before legal action can be taken".ss To be
effective at international environmental law, and in order to con~plementthe
development of new scientific methods for environmental problem-solviiig,
8s
Ibid. at 168.
86
Ibid
at 156.
See ibid. at 161- 164. See aiso, Chapter IV, infa.
*'M'Gonigle, supra, note 80 at 102.
112
basic principles of Iegal evidence \vil1 require modification, particularly the
burden of proof and the standard of p r ~ o f . ' Because
~
the factual basis for
evidence is no longer causation of harm, but rather likelihood of causation. it
would appear that at least a reduction in the standard of proof \vil1 be
required.
To meet a precautionary standard of proof, a complainant should be required
only to prove a risk of harm based on a balance of probabilitv or, where the
costs of the risk to the complainant outweigh the benefits to the project
* burden of proof would then shift
developer, prove a niere risk of h a m ~ . ~The
to the developer, who should be required to dernonstrate, according t o the
circumstances, that the project poses no risk or a minimal risk of harni, that no
reasonable alternatives are available and that the public benefit to be deriwd
from the project outweighs the cost of the nsks to the comp~ainant.~'
90
See ibid
at 139-142.
In other words, the developer should be required to justifi the project as promoting a
non-exploitive, non-basic interest. See Chapter II, supra, text accompanying notes 88-89
and 9 1 -94. On contemporary standards of defence, see M'Gonigle, ibid. at 143- 149.
9'
113
The principle of precautionary measures initially arose from an increasing
awareness in the international comrnunity that a fresh basis was required for
determining causation in environmental systems, in contradistinction to the
traditional standard for causation established in the Trczil Srnelter arbitration9?.
The Arbitral Tribunal in that case held that a State is responsible for harm
caused in the temtoxy of another State, if the hann is "serious" and can be
"established by clear and convincing e ~ d e n c e " .With
~ ~ no requirement under
the uncenaintv principle for establishing actual harm to the environment, the
Trnil Smlter test becomes moot and needs to be replaced by one based on a
quantitative threshold of probabilitv of risk of hami.
Generally, the principle of precautionary measures provides that where
scientific uncertainty exists about the adverse effect of an activity or substance
on an ecosvstem, the activitv or substance should be prevented from causing
that e f f e ~ t The
. ~ ~preventive nature of the precautionary principle "anticipates
that daniaging effects may become irreversible before there is conclusive
'' Supra, note 54.
93
Ibid. at 1965.
See e.g., E. Christie, "The Eternal Triangle: The Biodivenity Convention. Endangered
Species Legislation and the Precautionary PrincipIe" ( 1 993) 10 Env. & Plan. L.J. 470 at
480; Cameron & Abouchar, supra, note 8 1 at 2; OECD Draft Principles, supra. note 23,
para. 4 1, and M'Gonigle et al., supra, note 80 at 158.
94
114
scientific proof as to their precise
In legal terms, this preventive
nature finds support in existing international law, to the extent that good
neighbourliness provides a duty to avoid h a r ~ and
n ~ ~"institutionalizes caution"
in the legal process9'. The use of the principle of precautionary measures in
international environmental latv to date reveals a wide variation in its scope of
application, the threshold for its invocation and the nature of the preventive
measures requiredSgs
The pnnciple of precautionarv measures is found, irzter alin, in the Rio
Dr~lnintioii~~
and the Clinintc Cliaiigc Conve~ltioii'~;
is referred to in the
'' Christie. ibid.at 480. See also, M'Gonigle et al.. ibid. at 158.
Birnie & Boyle. supra, note 23 at 95.
97
Carneron & Abouchar, supra, note 8 1 at 3.
Since its introduction in 1987 at the Second International Conference on the Protection
of the North Sea. the principle of precautionary measures has appeared in domestic
legislation, regional multilateral instruments and globally international instruments. For
history and analysis of the pnnciple of precautionary measures, see Cameron &
Abouchar, ibid. at 6- 18.
99
Supra, note 42.
United Nations Framework Convention on Climate Change, 9 May 1992, UN Doc.
IW
A/AC.237/18 (Part 1I)lAdd. 1 and Corr. 1 (1992), reprinted in 3 1 I.L.M. 85 1 [hereinafier
Chtare Change Convention] (entered into force 2 1 March 1994).
115
preambles 'O ' to the Montred P r ~ t o c o l and
' ~ ~ the Biodivenity Convention ' O 3 ; and
has been explicitly adopted by the United Nations Environment Programme
("UNEP") and "accepted implicitly or explicitly by four international
declarations on the dumping of waste at sea"lM. Despite its wide
incorporation. the status of the principle of precautionary measures at
international law is not jret setded. Some argue that in light of its relativelv
quick reception bv the global environmental community, the pnnciple is
indicative of "instant" customary international law,'OSand could eventually
become a general principle of international lado6. Others believe that the
widely differing standards of e\ldence in the many versions of the principle
' O 1 The material found in the preambles to international instruments is generally historical
and honatory, with no legal effect.
Monireal Prorocol on Subslances rhai Deplete ~ h Ozone
e
Layer, 16 September 1987.
reprinted in 26 I.L.M. 1550 [hereinafter Montreal ProtocoC] (entered into force 1 Januaq
1989). The principle of precautionary measures, as set out in the Monireal Protocol, is
not applied in practice. See Carneron & Abouchar, supra, note 8 1 at 17-18.
'O
'O3 Convention on Biological Diversity, 5 June 1992, UN Doc. LJNEP/Bio.DivlN-7MC.5/4 (1 992), repnnted in 3 1 I.L.M. 8 1 8 hereinafter "Bodiversify Convention"]
(entered into force 29 December 1993) .
lm
Cameron & Abouchar, supra, note 8 1 at 14.
'OS
See ibid. at 19.
and the variations of its application in State practice, mitigate against its
acceptance as customary international Iaw.'"
Whatever its precise legal status, and notwithstanding its interpretive
variations, the principle of precautionary measures clearly is an ernerging n o m
of international environmental law. The two major statements of the
precautionary measures principle with application to the biosphere as a whole,
as opposed to a geopolitical region or a particular ecosvstem, are found in
Artide 7 of the Berge11 Dec~nrntioil,'~~
adopted in 1 9 9 0 , ' ~and
~ Principle 15 of
the Rio Dcclnrntioii, "O adopted in 1992 at the Earth Sumniit. Given their
linguistic similaritv and their related histor).. they could represent the future
Bimie & Boyie, supra, note 23 at 97-98. Interestingly, while Cameron & Abouchar.
ibid., argue that the principle of precautionary measures is a n o m of customary
international law. they also enurnerate many constituencies which have adopted this
principle. but do not follow it in practice. Ibid at 6-1 2 and 17-18.
'O7
las Ministerial Declararion on Sustainable Development in the ECE vnited Econornic
Commission for Europe] Region, 16 May 1990, reprinted in H. Hohmann, ed., Basic
Documents of international Environmental Law, vol. 1 (London: Graham & Trotman.
1992) at 558 [hereinafter Bergen Declaraiion].
'* "The Bergen Conference was organized by the Governent of Norway in cooperation
with the [ECE] as part of the follow-up to the report of the [Brundtland Commission],
and as part of the preparations for the 1992 [Earth Summit]. Cameron & Abouchar,
supra, note 8 1 at n.6. The 34 ECE signatories to the Bergen Declaration use the
principle of precautionary measures to "guide policy", "althouph the pnnciple still lacks a
consistent definition". Ibid at 18.
Ilo
Supra, note 42.
direction the international community may take in its application of the
pnnciple of precautionary measures. The two provisions are set out below:
Bergen Declnrntion, Article 7:
Rio Declnrntion, Principle 15:
In order to achieve sustainable
development, policies must be
based on the precautionary
pnnciple. Environmental measures
must anticipate, prevent, and attack
the causes of environmental
degradation. Where there are
threats of serious or ineversible
damage, lack of scientific cenainty
should not be used as a reason for
postponing measures to prevent
environmental degradation.
In order to protect the
environment, the precautionary
approach shall be widely applied bv
States according to their
capabilities. Where there are
threats of serious or irreversible
damage, lack of full scientific
certainty shall not be used as a
reason for postponing cost-effective
measures to prevent environmental
degradation.
In its reference to a "precautionary approach", Principle 15 of the Rio
Declnrntioii suggests that the international communitv does not wvish to endow
it ~ 4 t hthe status of a principle.l1' The scope of Principle 15 is broader than
that of Article 7 of the Bergen Declrrrntio~ibecause it speaks to protection of the
environment and not strictly to sustainable development and its priority of
developmental needs over environmental concems. Principle 15 then retreats
from this position by stating that it "shall be wïdely" -- not ahvays -- applied
and that, if applied, the m e n t of application depends on "capabilities" of
"'
"The negotiaton rejected suggestions by some European countries to promote a
'Precautionary PrincipIe'." Kovar, supra, note 43 at 134.
118
States, namelv, the financial, political and social factors. In both provisions,
the threshold for invoking the principle is limited to "threats of serious or
irreversible damage". It is not dear whether "serious" is an alternative to
"irreversible". Neither Article 7 nor Principle 15 gives anv indication to what
extent, if anv, the burden of proof shifts. Artide 7 is seen as shifting the
burden to the project developer to show that an activity "will not damage the
environment",'
'
while the "conventional view" of Principle 15 is that the
burden would shift to the developer to prove that the project is "not harmful
to the environment "' 13. Finally, when the principle of precautionarv measures
is invoked, Principle 15 provides that the onlv preventive measures required
are "cost-effective" ones, in keeping 114th the "dewlopmental assistance" theme
of the Earth Summit ' *'.
The principle of precautionary measures is likelv to have a strong influence in
the fie!d of environmental management. New precautionarv strategies for
management \vil1 be required that no longer assess the effect of the h a m ~which
an ecosystern sustains from the introduction of a substance or activity, but
Il2
Carneron & Abouchar, supra, note 81 at 18.
Il3
OECD Draft Principles, supra, note 23, para. 45.
See supra, text accompanying note 79.
instead assess the nsk of harm posed to an ecosystem if the substance or
l 5 Preventive management
activity were introduced into the eco~ystem.~
techniques indude pnor justification procedures,'16 "monitoring, providing
~ ~well
' as the principles of adaptive
earlv waming and prioritizing n s k ~ " , as
management, which are "premised on the assumption that management
strategies should change in response to new scientific i n f o r m a t i ~ n " " ~ .
Implementation of preventive management techniques will require the
modification of environmental impact assessments so that they become
environmental risk assessments. l l 9 Scientists, technologists and poli-
makers
1141
have to develop models for determining what activities are "threats" and
which of these threats are "serious" or "irrever~ible".''~The global Iegal
See e.g., OECD Drafi Principles, supra. note 23, para. 45 and MgGonigleet al.. supra.
note80at 138.
'15
M'Gonigle er al., ibid at 161- 165. A pnor justification procedure is a regulatory one.
consisting of a "series of steps with which an appiicant for a permit to dispose of \vaste at
sea m u t comply". Ibid. at 162. See also, Chapter IV. infia, text accompanying notes 5666.
l l7
Weiss, supra, note 2 at 689.
'la
Tarlock, supra, note 82 at 1 139. See also. ibid. at 1 139- 1 144.
Christie, supra, note 94 at 482-484. On environmental impact assessrnents, see
Chapter IV, Nifia,Section C.1(a).
H9
'?O "Because couniries may vary significantly in their assessments of what constitutes
serious threats or nsks to shared resources and the global commons, international
environmental agreements are very difficult to negotiate." OECD Drafi Pnnciples. supra.
note 23, para. 48.
120
community will be charged with developing appropriate international
standards of proof for evidence based, not on "harm", but on the "risk of
harm", and with dellsing methods for the equitable allocation of the burden of
2. Biocentric Criticiue
The principle of precaurionary measures represents a significant emerging
pnnciple of international environmental law for e-xtending respect for nature to
its outermost limits, albeit within the parameters of an enlightened
anthropocentnc moral perspective. l a
The pnnciple of precautionaw rneasures.
with its wholly preventive outlook, is an attempt to anticipate haml based on
the probabilitv of risk of h a m ~ instead
.
of the more traditional methods of
regulating the introduction of substances and the implementarion of projects
until the hann is discovered. at which rime a- postfiicto cleaning up and
compensation for the harm occur.
Even with its far-reaching possibilities, the emerging trend in international
environmental law appears to indicate that the principle of precautionary
measures will be applied only where the probability of risk of hami is "serious
lx
See e-g.,Tarlock, supra, note 82 at 1 134-1 138.
121
or irreversible". Yet, as humankind's understanding and appreciation of the
value of non-human entities increases, it is possible thar the threshold for
"serious" threats of harm could be reduced.12' As it now stands, to prove that
the risk threshold has been met, the complainant is required to adduce
evidence on a balance of probability. The burden of proof then shifts t o
demonstrate that the project should be implemented.'23 The current state of
the global economv would seem t o suggest that prevention of scientificallv
uncertain threats of harm will be required only where the preventive measures
are "cost effective".
From the biocentric moral perspective, the principle of precautionanvmeasures
is a step in the right direction, with its emphasis on preventive srrategies for
stemming environmental harms.12' It is, however, a small step. For a
biocentrist, the principle of precautionarv measures States: Mrhere scientific
uncertainty exists about whether the effects of any activitv or substance arising
"'"We must invest some trust in the possibility that the change of consciousness we
have experienced in o u scientific, philosophical, and political understanding of
environmental problems will extend to the interpretative consciousness of lauyers and
decisionmakers [sic]when they approach the meaning and effect of these threshold
words." Carneron & Abouchar, supra, note 8 1 at 22.
Iz3
See supra, text accompanying notes 90-9 1.
"' See Chapter II, supra, Section C.2(a).
122
from a project are adverse in interest to any ecosystem, the implementation of
the activity in. or introduction of the substance into, the ecosystem s h o d d be
prevented unless the project developer can demonstrate, with scientific
cenainty, that the activity or substance fulfils the requirements for biocentnc
management
With biocentnc precaution, the scope of "ecosvstern" exzends to a11 biological
h
respect for nature.'''
entities-in-ecosystems, in accordance ~ l t biocentric
The
threshold for application of the principle of precautionarv measures is low, in
keeping ~ i t the
h biocentnc requirement for avoidance of interference with ,
and harm to, al1 living entities, their habitats and ecosystems.~~'For the threac
to be "adverse" in interest, it need onlv bel "unfavourabie", "contran~",
"hostile" or "opposed" to the interests of an ecosvstem.'2S Such a liberal
interpretation of the principle of precaurionan? measures requires that "an\.
-
--
-
"' On biocentric management, see ibid. at Section C.Z(b)(ii).
"'See ibid. at Section C .1.
"' See ibid. at Section C.2(a)(i).
"*
See e-g., Dictionury of Canadian Law (1 st ed. 199 1), Black's Law Dic~ionary(6th ed.
1990) and Concise Oxford Dictionay (8th ed. 1990).
substances, whose 'safety' has not yet been dernonstrated", will be
controlled lZ9.
To ensure to the greatest extent possible that the interests of e c o j s t e m s are
not adversely affected, the biocentnst shifts the entire burden of proof t o the
project developer, who is required to demonstrate on the basis of objective
scientific certaintv that no adverse effects will ensue from the introduction of
substances into, or the implementation of activities in. the ecowstem. Shifting
the burden of proof requires that the project developer present evidence, based
on principles of scientific uncertaintv, of the non-adverse effect of the activitv
or substance. In cases where the project developer is disputing evidence of
another panv. the project developer must effectively refute anv opposing
daims. The standard of proof is based on the requirements of the biocentric
nianagement régime:I3O The project developer must demonstrate that the
project is biocentrically acceptable,1 3 1 that any adverse affect is justifiedl 3' and
"9
M'Gonigle et al., supra, note 80 at 159.
"O
See Chapter II, supra, Section C.Z(b)(ii).
l 3
See ibid. at Section C.Z(b)(ii)(~).
"'See ibid. at Section C.Z(b)(ii)(~).
124
has minimal impact,'33and that appropriate restitution is made ro cornpensate
for any adverse effects the project may haven4.
D. The Princi~leof Sustainable Develo~ment
1. Current Status
The concept of sustainable development has emerged in a little more than a
decade as the predorninant international and national philosophv for
environmental planning and ecological management. The kemel of sustainable
development was planted in 1972 at the Stockholm Conference, where it was
noted that lirnits to damage to the environment were necessary for "sound
economic and social development . 135 The terni itself was introduced in
iv
1980'~
in~the WorZd Co~ls~.nuitiori
Stiatrgy'3' and was incorporared into the
WorZd C I i n ~ ~ rasr 'one
~ ~ of its four general principles. '31
"j
See ibid.at Section C.2(b)(ii)(c).
'34
See ibid.at Section C.2(b)(iii).
135
Bimie & Boyle, supra, note 23 at 40.
'36
Supanich, supra, note 4 1 at 105.
''' International Union for the Conservation of Nature and Natural Resources bereinafier
ILICW. World Conservation Strategy (Gland, Switzerland: IUCN, 1980).
If'
Supra, note 48.
Principle 4 of the World Charter, ibid,states: "Ecosystems and organisms, as well as
the land, marine and atmospheric resources that are utilized by man. shall be managed to
'39
The concept of sustainable development attained world-wide recognition
through the work of the World Commission on Environment and
Development ("WCED"). which was established bv UNEP in 1983. in
response to the awareness at the time that State activities had the potential to
cause substantid harm to the biosphere and, hence, to hurnank~nd."~Pan of
the Commission's work was to propose "strategies for sustainable
development .141 Ilte findings of the WCED, reponed to UNEP in 1987,14'
'7
are more commonly known as the Bmndtland Reporti4'.
achieve and maintain optimum sustainable productivity, but not in such a way as to
endanger the integrity of those other ecosystems or species with which they coexist."
The IVo'orld Charter was drafted. initially by the IUCN and then by an international
cornmittee, as a guide for regulating international environmental development. Wood. Jr..
supra, note 47 at 977. Although non-binding, its general principies were intended to be
used as "rules to guide human beha~iof'.Ibid at 980.
Report of the World Commission on Environmenr and Development: Our Comnton
Futwe. UN GAOR, 42d Sess., Annex. Agenda Item 83(3). p u a . 1, UN Doc. AlW427
( 1 98 7) [hereinafter WCED Report].
"O
Ibid. The mandate of the WCED "was to examine critical environmental and
development issues and to formulate redistic proposals for dealing with them; to propose
new f o m s of international cooperation on these issues to influence policies and events in
the direction of needed changes; and to raise the levels of understanding and commitment
to action of individuals, organizations, businesses and govemments". Kiss & Shelton.
supra, note 39 at 5 1.
14'
WCED Report, ibid at para 2.
The WCED Repon was subsequently published as World Commission on
Environment and Development, Our Cornmon Future (Oxford: Oxford University Press.
1987) Fereinafter BrundtZand Report].
IJ3
A major finding of the Brundtland Report concems the application of
sustainable development to the future endeavours of humankind:
Sustainable development is developrnent that meets the needs of the
present without compromising the ability of future generations to meet
their own needs. It contains within it two key concepts:
4
the concept of 'needs'. in panicular the essential needs of
the world's poor, to which ovemding priontv should be
given; and
the idea of limitations irnposed bv the state of technologv
and social organization on the environment's abilitv to
rneet present and future needs.IJ4
The Report defines these "needs" as the "essential human needs ... for food,
clothing, shelter, [and] jobs".'4s To meet these needs "clearlv requires
economic growth in places where such needs are not being niet".I4' Huniaii
interests bevond the essentials "[require] the promotion of values that
encourage consumption standards that are within the bounds of the
ecologically possible and to which al1 can reasonablv aspire".'"' What is
"ecologicallv possible" includes a prohibition against "endangering natural
systems that support life on Earth .148 But "every ecosvstem eveqnvhere
t*
'41
Ibid. at 43.
'"
ibid
'46
ibid. at 44.
'" Ibid.
''' Ibid. at 45.
127
cannot be preserved intact": Living "resources" rnay be exploited so long are
they are "not depleted ... within the limits of regeneration and natural growth";
use of non-living "resources" should be calculated so that the "resource does
not run out before acceptable substitutes are available 'r .149 "Sustainable
development requires that adverse impacts ... [on ecosvsterns] are minimized
so as to sustain the ecosvstem's overall integrityw .150
Sustainable development, then, is a combination of economic, industrial and
social development which avoids harm to the biosphere and its ecosvstems in
order to ensure that its natural "resources", renewable and non-renewable, uill
be available for exploitation bv future generations of hurnankind to meet their
needs.lS1 The impact of this concept on environmental concems has been ail-
Ibid at 46.
Articles 2 and 3 of the "Summary of Proposed Legal Pnnciples for Environmental and
Sustainable Development", Annexe I to the Brundtland Report, supra, note 143 at 348.
provide, respectively, that conservation and use of the environment is "for the benefit of
present and future generations" and that in using the biosphere's resources, States "shall
observe the pnnciple of optimum sustainable yield". Article 3(c) of the Proposed Legal
Principles Iimits application of optimum sustainable yield to "living natual resources".
World Commission on Environrnent and Development, Experts Group on Environmental
Law, Environmental Prorection and Sustainable Development: Legal Principles and
Recomrnendations (London: Graham & Trotman, 1987) at 47-54 bereinafter WCED
Experts Group].Optimum sustainable yield "means that a living natural resource or
ecosystem must only be utilized in such a mamer and to such an extent that benefits from
those resources will be provided indefinitely". Ibid. at 47. It is unclear what limits are
established for exploiting "non-living natural resources" other than the language of
15'
e n ~ o r n ~ a s s i n gSustainable
.'~~
development is seen as a "global ethic", with
moral, Iegal, social, cultural and econornic i r n p l i c a t i ~ n s .It~ ~
is~"shaping
environmental policy debates in a fündamental way".lS4Current
environmental management philosophy is grounded in the theory of
sustainable development, with the former's requirement that anv "production
system respect the obligation to preserve the ecological base for
d e ~ e l o p r n e n t " ' ~With
~ . the emphasis of sustainable development on "the
relationship between environmental and economic factors"ls6and on the
correspondingly finite limit of the Earth's natural "resources", the relationship
between sustainability and population control has been highlighted.15'
Article 9 of the Proposed Legal Principles. which calls for "equitable and reasonable" use
of "transboundary natural resources". See ibid at 72-75.
''' "The phrase has found its way into practically everything written or spoken about O u r
environmental future: it has become the environmental movement's catch phrase of the
late twentieth cenniry. ... This is a motherhood doctrine of apparently unchallengeable
rectitude." M. Grant, "A European View of Sustainable Development" (1 99 1 ) 9 J. Energy
& Nat. Resources L. 1 24 at 124.
Is3
Supanich, supra, note 41 at 107.
'"
Handl, supra, note 9 at 82.
'51
Brundtland Report, supra, note 143 at 65.
'51
Grant, supra, note 152 at 124.
'*'
"The hurnan population that the Earth can sustain is dependent on the global
ecosystem, both as a source of natural resources and as a sink for its wastes. ... Resources
like food, water and energy must be divided among an increasingly large number of
people producing increasing amounts of waste. Food production levels dictate whether or
not our planet can support more people." E. Rohrbough, "On Our Way to Ten Billion
129
Legally, the number of international instmments employing t h e concept of
sustainable development. as well as the "legally significant expectations" it
engenders, ls8 "point t o [its] emerging legal status ... as a principle of
international
la^".'^^
The Rio DecZaration could possibly provide the "adequate
articulation"160necessary to transform "sustainable development" into "a
peremptory n o m of international law"
16'.
Another legal issue receiving
significant attention anses from the support given bv "sustainable
development" to t h e idea of the "human stewardship of nature" for futurc
generations"?
This idea provides a basis for the international legitirnization
Human Beings: A Comment on Sustainability and Population" (1 994) 5 Colo. J. Int'l
Env. L. & Pol'y 235 at 236. See also, A.J. Roman, "Sustainability and the New
Environmental Law of the 1990s" in C.J. Holgren, ed., Private Invesirnents Abroad -Problems and Solutions in International Business in 1992 (New York: Matthew Bender.
1992) 1-1 at 1-37 - 1-38.
lJ8
Handl, supra, note 9 at 80.
IJ9
Bimie & Boyle, supra, note 23 at 124.
"The conclusion that international law now requires a standard of sustainable
development to be met is not untenable; it simply lacks adequate articulation at present
for confident generdizations to be made." Ibid
I6l
Handl, supra, note 9 at 80.
"The key principle underlying sustainability is the 'human stewardship of nature.' Put
simply. by former Prime Minister [Margaret] Thatcher, 'We do not hold a fieehold on Our
world, but only a full repairing lease. We have a moral duty to look after our planet and
to hand it on in good order to future generations."' R. Mushkat, "Environmental
Sustainability: A Perspective from the Asi-Pacific Region" (1993) 27 U.B.C.L. Reu. 153
at 169.
'61
of the concept of intergenerational equity as the legal vehicle for providing the
necessary stewardship. 163
Perhaps the most lasting influence of the concept of sustainable development
on the evolution of international environmental law will be felt as a
consequence of the 1992 Eanh Summit in Rio, which "formallv anoint[ed]
the concept ... for legal use".'b" "Sustainabie developrnent" was "at the origin
of the Rio Conference"; "[a]ll documents adopted at Rio reflect th[e] approach
that sustainable development entails the integration of environmental
protection into t h e development process."16s Further, the insrninient with the
'
Handl, supra, note 9 at 82. On the concept of intergenerational equity, see E.B.
Weiss. "The Planetary Trust: Conservation and lntergenerational Equity" ( 1984) 1 1
Ecology L.Q.495 and, more recently, E.B. Weiss, In Fairness to Future Generations:
International Law, Cornmon Patrimony, and lntergenerational Equiy (New York:
Transnational Publishers, 1989). The concept is not. however, problem-free. See e.g..
"Agora: What Obligation Does Our Generation Owe to the Next? An Approach to Global
Environmental Responsibility" (1990) 84 Am. J. Int'l L. 190; G.A. Christenson, Book
Review (1 990) 1 Y.B. Int'l Env. L. 382, and Supanich, supro, note 4 1 at 95-99.
Sand, supra, note 41 at 17. Sustainable development "represented the underlying
concept of the Rio Conference and dominated the Rio Dechration 2.UNEP Drafi
Pnnciples, supra, note 23 at 16.
Iw
A-Ch. Kiss, "Will the Necessity to Protect the Global Environment Transform the
Law of International Relations?" (The Josephine Onoh Memonal Lecture, 28 J a n u q
1992) Hull, England: University of Hull Press, 1992, at 14. "Perhaps most importantly,
UNCED adopted Agenda 2 1. a five-hundred page blueprint detailing the 'new global
partnership for sustainable development' in the 2 1st century." OECD Drafi Pnnciples.
supra, note 23, para. 6 .
16'
131
broadest reach, the Rio Declaratio~i,166 L'darifie~'*,
L ' f ~ ~ hdefines"
er
and
"introduces procedural requirements for implementing the concept of
sustainable development v .167
Despite its popularity, "sustainable development" is not without its problems.
It is generallv agreed that the meaning of its t e m s are vague, ambiguous and,
a t rimes, contradictory and that its practical application in both doniestic a n d
transnational law and policy is u n d e a r and remains to be worked out.16s
Although heanily embraced i n Rio, and ~liiththe process of interpreration and
166
Supra, note 42.
M. Sanwal. "Sustainable Development, the Rio Dedaration and Multilateral
Cooperation" (1993) 4 Colo. J. Int'l Env. L. & Pol'y 45 at 48. See also. OECD Draft
Principles, supra, note 23, para. 6 .
'61
"Beyond a rather generalized impression that we should be buming fewer fossil fiels.
and perhaps engaging in more recycling of rnaterials, the actual measures that need to be
taken to move towards sustainable development -- as well as the associated costs and
benefits of such measures -- are not well understood. Sustainable development is open to
a wide range of interpretations, not a11 of h e m compatible. Not surprisingly, the
particular interpretation chosen tends to Vary according to the interests of the group
identiQing itself with the concept." J.O. Saunders, "The Path to Sustainable
Developrnent: A Role for Law" in J.O.Saunders, ed., The Legal Challenge ofSustainable
Development: Essaysfrom the Fourth Institute Conference on Natural Resources L m
(Calgary: Canadian Institute of Resources Law, 1990) 1 at 1. Grant, supra, note 152 at
125, is more openly cynical: "But the obvious risk with sustainable development is that
its very acceptability reflects a lack of real substance." See also, inter alia. Bimie &
Boyle, supra, note 23 at 123; Handl, supra, note 9 at 80-81, and OECD Drafi Principles.
ibid. at para. 6 .
'61
132
,~~
practical
~
influence
application only having begun in the Rio ~ e c l a r n t i o nits
on State practice remains to be ~ e e n l ' ~ .
A major cnticism of "sustainable development" is the lack of ciarity of
distinction between "developrnent" and " g ~ o w t h " . ' Conceptually,
~~
"development" is aualitative, imposing values derived from socio-political
aspirations, while "growth" is quantitative, using economic indicators, such as
Gross National Product or Gross World Product ("GWP"), to nieasure the
" ~practice, "development" implies a steady state,
well-being of ~ o c i e t ~ .In
where the net level of consumption of natural "resources" bv hunian activities
Ib9
See eg supra. text accompanying notes 66-75.
E-g., an environmental economist in The Netherlands questioned in March 1994
"whether conventional solutions currently opted for by the authorities are in accordance
with the governrnent comrnitrnent to sustainable developrnent in the long run".
"Decisions on Infrastructure Focusing on Economic, not Environmental Factors" BiW
Internuiional Environmental Daily (3 March 1994) 1. See aiso, supra, n. 168.
''O
"'
Supanich, supra, note 41 at 106. The term "sustainable development" is an
oxymoron because a sustainable society is a "subsistence-oriented society". in which
srnall groups satisQ most, if not ail of their own needs, whiie a development society is
"wealth-oriented" and "embraces development and progress but faces continuai crises
and the need for reorganization". Grant, supra, note 152 at 128, commenting in reference
to A. Tanner, "'Northem Indigenous Cultures in the Face of Development" in Saunders,
ed., supra, note 168,253 at 261. See also, P.S. Elder, "Sustainability" (1991) 36 McGill
L.J. 832 at 836-837.
'"
Supanich, ibid
133
remains the same over time.'73 "Growth" implies a rising state, or an increased
level of "resource" consumption, until the point beyond which ecosystems can
no longer sustain the "resources " required for human sunival. '74
Arguably, "sustainable development" is not a steady-state, "no-growvth"
strategyl?
" [Llargely cast
in t e m s of economic well-being",'76 the concept of
sustainable development is concemed with "sustainable growth, that is, the
rare of increase"."'
The Brundtland Report makes the assumptions that the
current level of GWP is low enough to sustain the increased gronth it calls for
and that "one can simultaneousl~7improve the global equitv among nations, ...
while allowing the developed world to grow and the underdeveloped world t o
grow even faster".li8
'"
See Supanich, ibid. at 106-107 and Roman,supra, note 157 at 1-4- 1-5.
174
Roman, ibid. at 1-5.
'71
Grant,supra, note 1 52 at 125. Cf contra, Mushkat, supra. note 162 at 156.
'71
Supanich,supra,note 4 1 at 107.
'77
Roman, supra, note 1 57 at 1-5.
Ibid See also, P.S. Elder & W.A. Ross, "How to Ensure That Developments Are
Environmentally Sustainable" in Saunders, ed., supra, note 168, 124 at 125-120.
17*
134
Other terms in the description of sustainable development which raise
interpretive questions indude "compromising" and "needs". The term
"comprornising" permits substitution of one "resource" for another, so that a
panicular "resource" may be exploited, possibly to extinction, so long as a
viable option rernains.lT9 The term "needs" is culturally relative and
"politically accountable", providing no objective standard for what constitutes
the "needs" for which development is to be sustained.IS0
The WCED Experts Group"' and the Rio D&rntiods'
do not appreciably
contribute to the resolution of the aforementioned issues. If anvthing. given
the generallv accepted Mew that the Rio Declnrntion provides a pragrnatic
application of a concept in action,1s3and in light of the aspirations of the
nations of the South at the Rio Summit,Is4"sustainable development" mav be
'79
Grant, supra, note 152 at 125.
180 See Elder & Ross, supra, note 178 at 125 and Roman, supro, note 157 at 1-4. E.g..
an urban North Amencan would not Likely agree with an African nomad or a Pemvian
villager on what would be acceptable "food, clothing, shelter, jobs" under an international
régime for implementing sustainable development.
18'
Supra, note 151.
18'
Supra, note 42.
18'
See supra, text accompanying notes 15 1- 157.
lu
See supra, text accompanying notes 68-69 and 71-75, and n.79.
135
viewed as a growth-onented philosophy which strives to provide as a prioritv
an increasing level of tangible benefits to the lesser developed nations, while
concurrently attempting to rnaintain and increase, where possible, the level of
benefits accming to the industrialized countries, without bringing renewable
and non-renewable "resources" below a level of "optimum sustainable yield".
Such a view is consistent with Principles 5 and 6 of the Rio ~ e c l r r m t i o ~ , ' ~ ~
which provide, respectivelv, that "eradicating povenv" is "an indispensable
requirement for sustainable development" and that the "special situation and
needs of developing countnes, particularlv the least developed and those most
environmentally minerable, shall be given special pnoritv". To eradicate the
povenv of the least developed countnes entails econornic growth in order to
achieve standards of living sufficient for State sustainabilit\*.
2. Biocentric Critiaue
The concept of "sustainable development", as the current pre-eminent rntioirrtk
for environmental planning and ecological management, purports to dictate the
nature and extent of the constraints to be placed human conducr in order to
further the well-being and integrity of ecosvstems for the benefit of
humankind. The anthropocentnc and biocentric moral perspectives both
"' Supra, note 42.
136
require constraints on human conduct in order to protect the biosphere and irs
ecosystems. The distinctions between the two perspectives largelv focus on
two questions: which entities comprising ecosystems are protected by these
constraints, and what is the threshold of intrusion into ecosystems for appI~<ng
constraints.
The concept of sustainable development is bv no means an altruistic statenient
'
it
ascnbing value to the environment independent of h ~ r n a n k i n d . ' ~Rather,
represents the position of an enlightened anthropocentric, expressing
humankind's self-interest in sunival through the use of non-human entities to
meet its needs. '" Indeed, this anthropocentricity is nonr entrenclied in
Principle 1 of the Rio D r c l n m t i u ~ z "Human
~~~:
beings are at the centre of
concems for sustainable developmenr." I g 9
Cf World Charter, slrpra, note 48. Preamble. para. 1 .
See e.g., OECD Draft Principles. supra, note 23, para. 6; HandI. supra. note 9 at 80;
Supanich, supro, note 4 1 at 107; Roman, supra, note 157 at 1-4, and Elder, supra, note
171 at835.
'13'
'
Supra, note 42.
IgP
See also, supra, text accompanying notes 4 1 -44.
137
From the biocentric perspective. dl living things are entirled to equivalent
moral c o n s i d e r a t i ~ n . ' ~
Accordingly, constraints are placed on human conduct
to ensure preservation of al1 biological entities and their ecosystems and,
consequently, the biosphere. A system of biosphere management is not limited
to the maintenance of ecosystems to meet human needs. "The goal of
biocentric management is to ensure that humankind's projects neither harm,
nor interfere nlth, the fulfilment of the natural existence of al1 non-
threatening, non-human biological entities-in-ec~s~stems."'~~
To meet this
goal, the conduct of hurnankind should be constrained to the extent necessarv
to provide for the maintenance of ecosvstems in order that al1 biological
entities, including humankind, can fulfil their natural existence. The threshold
for imposing constraints on human conduct is minimal interference 115th
biological entities-in-ecosystems."'
Where harm or minimal interference is
unavoidable, projects are, if justified, 193 implemented in the least intrusive
See Chapter II, supra, Section C. 1.
19'
See ibid, text accompanying note 79.
'91
See ibid., text accompanying notes 69-73.
19j
See ibid. at Section C.Z(b)(ii)(~).
138
rnanner, with equity for al1 biological entities, where n e c e s s a q ~and
, ~ ~with
~
appropriate restitutionlgs.
A central concept from both moral perspectives is that of "needs ". Consistent
with its enlightened anthropocentric position, the Brundtland Report
emphasizes the essential human needs of food, dothing. shelter and jobs.
From the biocentric perspective, these needs are likewise considered basic.'96
But the biocentrist also accounts for the basic needs of non-human biological
entities-in-ecosystems in relation to the basic and non-basic needs which
motivate human projects.'9i The relationships between the needs of
humankind and non-human biological entities-in-ecosvsrems plav a central role
in determining whether a project wi1l be impleinented.'99
Other aspects of "sustainable development" also stand in contrast to the
biocentric perspective. "Sustainable development" gives prioritv to
'94
See ibid. at Section C.Z(b)(ii)(c).
195
See ibid. at Section C.Z(b)(iii).
'96
See ibid,text accompanying notes 84-85.
'91
See ibid.,text accompanying notes 8 1-89.
'91
See ibid. at Section C.2(b)(ii)(~).See also, Chapter IV, infia, Section C.3(a).
139
"development" over "environment
thereby fùrther emphasizing the
anthropocentric focus. "Sustainable development" places a limit on the
'~
while anthropocentric in scope
principle of precautionary m e a s ~ r e s , which,
and threshold, advocates prevention of harm and interference"'. Therefore,
even from the perspective of edightened self-interest, "sustainable
development" results in further restrictions on what is already a nanow
interpretation of the principle of precautionary measures. Additionally, given
its "express disclaimer of anv intended encroachment upon state
s o ~ e r e i ~ n t"sustainable
~ " , ~ ~ ~ development" has no effect in moving
environmental decision-making from the ineffective control of States into a
broader, supranational forum.
1 99
See Handl, supra, note 9 at 80 and Sanwal, supra, note 167 at 49.
Sustainable development's "cornmitment to promote development" stands "in contras
to the no-growth strands that are part of the complex policy fabnc of the precautionary
principle". Handl, ibid.
'O0
'O'
See supra, text accompanying notes 94-95.
102 r i
Sustainable developrnent is development that rneets the needs of the present without
comprornising the ability of the future generations to rneet their own needs and does not
imply in any way encroachment upon national sovereignty." United Nations Environment
Programme, Sfatement on Sustainable DeveIopment, übEP, 15th Sess., Amex II,
Doc. UNEPIGC 15L.37 (1 989), cited in Handl, supra, note 9 at n. 147.
CHAPTER IV: MANAGEMENT OF THE BIOSPHERE
Accompanying international acceptance of the faa that environmental
concerns transcend national borders, the global community has aduiowledged
that remedies for these concems likewise cal1 for transnational measures to
replace current ad hoc, often unco-ordinated methods. These measures take the
form of a management régime, the structure and function of which will vanr
according to the moral perspective adopted.
The basic principles of international environmental law discussed in Chapter
III are applicable to both the anthropocentric and biocentric moral
perspectives. The principle of common biospheric concem reflects the
transnational nature of environmental problems and the need to overcome the
traditional limits of State sowreignty in order to address and resolve these
problems in a rational and effective mariner.' The principle of good
neighbourlii~essrequires that States avoid adverse effects to temtones outside
their junsdiction and control and places limits on the use by States of their
"resources" to avoid such adverse effects in accordance wlth the principle of
"common biospheric ~ o n c e r n " . ~T h e principle of precautionary measures
.-
'
-
-
-
-
See Chapter III, supra, Section A.
See ibid. at Section B.
141
emphasizes the need for prevention of adverse effects to ecosystems when
undertaking human projects and requires that projects not be undertaken, if
scientific uncertainty exists about whether the project will have an adverse
effect on the e n ~ i r o n m e n t .The
~ pnnciple of sustainable development calls for
constraints on human conduct in order to maintain the integrity and
functioning of the biosphere and its ecosystems.'
The differences between management régimes from the anthropocentric and
biocentric moral perspectives are largely ones of degree, not kind. The basic
disrinaions concem scope of application and threshold. with the biocentric
perspective extending the scope of international en~lronrnentallaw to include
ail biological entities-in-ecosvstems on an equitable basis and lowering the
thresholds for placing constraints on the conduct of humankind? Similarlv,
the basic principles and techniques for management of the biosphere, which
are applicable to both the anthropocentric and biocentric perspectives, have a
common conceptual basis. As with the basic principles of international
environmental law, the principles and techniques of biosphere management are
See ibid. at Section C .
' See ibid. at Section D.
See ibid., text accompanying notes 190-195.
142
found, in one fonn or another, in current international environmental law.
The differences between management strategies for the two perspectives are
logical extensions of the variations found in the four basic pnnciples.
The purpose of this chapter is to describe the general principles and techniques
of a régime for biocentnc management of the biosphere and its related
ecosystems ("biosphere management") bv examining the need for biosphere
management, bv reviewing current fundamental techniques of biosphere
h biocentric
management and by adopting these techniques to confonn ~ l t the
perspective.
A. The Need for Mana~ementof the Bios~here
Improved nianagement strategies are necessary on a supranational scale t o deal
effectively and efficienrly with the concems endangering the health and
integrity of the biosphere and ail its c ~ r n p o n e n t sparticularly
,~
for those
"A new approach is still more necessary for planetary environmental problems. ...
Common to al1 these aspects of a detenorating biosphere is the fact that individual States
or even groups of States are unable to effectively respond . ... From these developrnents it
is clear that environmental protection requires international legal rules considered in the
framework of the entire international system. ... ï h e problems ... correspond to the
interest of comrnunities beyond the boundaries of a single State." A-Ch. Kiss & D.
Shelton, "Systems Analysis of International Law: A Methodological Inquiry" (1990) 1 7
Netherlands Y.B. Int'l L. 45 at 63 and 66. See also, ibid. at 60-67.
143
concems affecting the biosphere as a whole7. Biosphere management adopts
the principles of ecosystem management and applies them from a biocentric
perspective. The purpose of ecosystem management is to "maintain and
restore natural processes" and to "accommodate instability and change", given
that "ecological systems evolve over time, often unpredictably
The "core
principles" of ecosystem management and. hence, biosphere management are
the need for trans-jurisdictional, CO-operativemanagement structures;
; ~ preservation of
knowledge for an improved understanding of e c o s y ~ t e m s"the
7
"Concept 3. In hierarchical organizations of ecosystems, species interactions that tend
to be unstable, nonequilibriurn, or even chaotic are constrained by the slower interactions
that characterize large systems. ... Accordingly, large ecosystems tend to be more
homeostatic that their cornponents. This principle rnay be the most important of all,
because it rneans that what is m e at one level may or rnay not be true at another level or
organization. Also, if we are senous about sustainability, we must raise our focus in
management and planning to large landscapes and beyond." E.P. Odum, "Great Ideas in
Ecology for the 1990s'' (1992) 42 Biosci. 542 at 542.
R.B. Keiter, "Beyond the Boundary Line: Constructing a Law of Ecosystem
Management" (1994) 65 U. Colo. L. Rev. 283 at 295. "Flcosystem management views
the land and resource base in its entirety, as a holistic or integrated entity. Management
focuses on entire ecosystems, not just individual resources ... . [Elcosystem management
emphasizes the need for inter-jurisdictional coordination to ensure ecological integrity
and sustainable resource systerns." Ibid. See also, ibid. at 302.
The requirement for knowledge is central for successfbl ecosystem management. It
provides the feedback on the effect of prevention procedures so that "management
strategies [can] change in response to new scientific information". D. Tarlock, "The
Nonequilibriurn Paradigm in Ecology and the Partial Unraveling of Environmental Law"
(1 994) 27 Loy. L.A.L. Rev. 1 121 at 1139.
144
biological diversity within regional fauna and flora"; widespread public
involvement, and sustainable development. l0
Of particular interest from the biocentnc perspective is the lotver threshold for
applying constraints to human conduct evident within a n ecosystem
management framework. The standard of sustainability, which permits effects
adverse to the interests of an ecosystem so long as the ecosvstem is not
irretrievably damaged, is replaced by a "nonimpairnient standard, which would
liniit activities that might impair or damage the integritv of existing
'
ecosy~tems".~Another significant feature of ecosystem management is the
central role played bv environmental impact assessment."
The international comniunitv generallv agrees on the need for some form of
supranational ecosvstern managenient and that, whatever the forin of
management, it includes within its framework both renewable and non-
'' Keiter, supra. note 8 at 301-303.
" Ibid. at 329. "[A] 'nonimpairment' standard provides more protection for ecosystem
processes and affords clearer guidance for land managers. Although the concepts of
nonimpairment and sustainability are inherently related, the two texms are not necessarily
interchangeable. An unimpaired ecosystem is, by definition, a sustainable ecosystem, but
a sustainable ecosystem might survive significant impairment." Ibid. at n.203.
See R.B. Keiter, "NEPA and the Emerging Concept of Ecosystem Management on the
Public Lands" (1990) 25 Land & Water L. Rev. 43 at 46.
renewable "resources". The need for an international management régime has
been a consistent theme in international environmental law at least as far back
as the Stockholm Conference of 1972. Prinuple 1 of the Stockliolnt
Declnrntiod3 provides that the "natural resources of the earth ... must be
safeguarded ... through careful management or planning, as appropnate";14
Principle 4 of the World CharterIs States: "Ecosystems and organisrns ... shall be
managed to achieve and maintain optimum sustainable productivity, ... .
?*
I6
Although supranational ecosystem management is not specificallv mentioned
in the Rio Declarntio>i," it is logically necessary for effective transborder
sustainable development and for the practical implementation of Principles 7
and 8 of the Drrlnrntimi calling, respectivelv, for a "spirit of global partnership"
''
Declaration of the United h'olions Conference on the Human Environmenr. 16 June
1972, UN Doc. A/CONF.48/144 (1 972). reprinted in 1 1 I.L.M. 1416 [hereinafier
Stockholm Declaration].
j4
As well, Principles 4 and 5 of the S~ockholmDeclaration, ibid., provide, respectively.
for maintaining, restoring and improving "vital renewable resources" and for the
safeguarding and wise management of "gravely imperilled" wildlife and its habitat.
" World Charterfor Nature, GA Res. 37/7, UN GAOR, 34th Sess., Item No. 2 1, UN
Doc. N37L.4 and Add. 1 (1 982), reprinted in 22 I.L.M. 455 [hereinafter World Charter].
l6
As well, Principles 1, 2 and 3 of World Charter, ibid,provide, respectively, that the
"essential processes of [nature] shall not be impaired"; that the Earth's species
populations shall be sustained and their habitats shall be "safeguarded", and that "[al11
areas of the earth ... shall be subject to these pnnciples of conservation".
Rio Dedaration on Environment and Development, 14 June 1992, UNCED Doc.
NCONF. 15 1/S/Rev. 1 (19W),reprinted in 3 1 1. L M . 874 [hereinafier Rio Declaration].
l7
146
to cany out environmental reform and for the reduction and elimination of
"unsustainable patterns of production and c o n s ~ m p t i o n " . ~ ~
B. Basic Princi~lesof B i o s ~ h e r eManagement
Biosphere management, based on respect for nature, is first and foremost a
strategy for the presentation of biological entities-in-ecosvstems, i.e., individual
biological entities, biological species, species populations, the biological and
physical components of their habitats and ecosystems, and the
intenelationships among them.19 To ensure that the inherent worth of nonhuman biological entities-in-ecosvstems is taken into consideration, restraints
are placed on human conduct to ( I ) avoid harm or anv action that could be
seriouslv detrimental to biological entities-in-ecos rsten~sand (2) avoid
interference with biological entities-in-eco stems which would prevenr them
from fulfilling their role in nature."
''
Pnnciples 20 and 22 of the Rio Declararion, ibid., in recognizing the role of \vamen
and indigenous peoples, respectively, in achieving sustainable development, acknowledge
their "vital role in environmental management and development" within State
jurisdictions.
l9
See Chapter II, supra, text accompanying notes 59-64.
See ibid., text accompanying notes 65-73.
For legal implementation of biosphere management States would have three
rnandatoxy obligations: ( 1) respect the inherent worth of al1 biological entitiesin-ecosystems and maintain their natural
roce es ses;^^
(2) plan and conduct al1
projects with the objectives of protecting and preserving both the b i ~ s p h e r e , ~ '
which includes ail related ecosystems, and i n particular its inherent ~ o n h , by
'~
avoiding any adverse effects t o the b i o s ~ h e r e ; 'and
~ (3) in conducting projects,
" "[Rlespect for nature entails the presenration of biological entities-in-ecosystems from
present and future use by humankind". Chapter II, supra, text accompanying note 59.
See also, ibid., text accompanying notes 60-64 and World Charter, supra, note 15,
Principle 1.
" United Arafions Convention on the Law ofthe Sea, 7 October 1982, UN Doc.
MCONF.62/122 and Corr. 1 to 1 1. (1 982), repnnted in 2 1 I.L.M. 1261 [hereinafier
UNCLOS] (entry into force 16 November 1994), art. 192, states: "States have the
obligation to protect and presenre the marine environment." In the law of the sea. Article
192 expresses the "primary obligation" of States, which is "given force" in Article 194 of
UNCLOS.M.L. McComeIl& E. Gold, "The Modem Law of the Sea: Framework for the
Protection and Preservation of the Marine Environment?" ( 1991) 23 Case W. Res. J. Int'l
L. 83 at 88,90. Taken together, Articles 192 and 194 indicate "a fundamental shifi from
power to duty as the central controlling principle of the legal regime ... . Whereas
previously states were to a large degree Free to determine for themselves whether and to
what extent to control and regulate marine pollution, they will now in most cases be
bound to do so on terms laid down by the Convention." A.E. Boyle, "Marine Pollution
under the Law of the Sea Convention" (1985) 79 Am. J. Int'l L. 347 at 350. On Article
194 of UNCLOS, see infia, note 25.
'j
On inherent worth, see Chapter II, supra, text accompanying notes 11- 16.
'4 Protucol on Environmenfal Protection of the Antarcfic, 4 October 199 1, ATS Doc. XI
ATSCWU3I2 (199 l), reprinted in 30 I.L.M. 146 1 Fereinafter Madrid Protocofl (not yet
in force), art. 3, para. 1 and 2(a). state:
1. The protection of the Antarctic environment and dependent and associated
ecosystems and the invinsic value of Antarctica, including its wilderness and
aesthetic values and its vaIue as an area for the conduct of scientific research. in
particular research essential to understanding the global environrnent, shall be
148
take ail rneasures necessarv to prevent or, if necessary, reduce and control, in
as timely a manner as possible and t o as great a n extent as is technologicallv
feasible, any adverse effeas to the biosphere ansing from a11 h u m a n projects,
including t h e introduction of anv potentially h a r m f d substance into, or the
implementation of any activity in, the biosphere2'.
fundamental considerations in the planning and conduct of al1 activities in the
Antarctic Treaty area.
2. To this end:
(a) activities in the Antarctic Treaty area shall be planned and conducted
so as to limit adverse impacts on the Antarctic environment and dependent
and associated ecosystems.
Whether the provisions of Article 3 are legally binding is not clear. See J. Angelini & A.
Mansfield. "A Cal1 for U.S. Ratification of the Protocol on Antarctic Environmentai
Protection'' (1 994) 2 1 Ecology L.Q. 163 at 234-236.
The restrictive nature of the provisions of the Madrid Protocol arises from the extremr
fragility of, and the lack of scientific information about. the Antarctic ecosystems. Such a
régime conforms to the highly preventive orientation of biosphere management and takes
into account the fact that non-human biological entities must rely on obligations imposed
by htimankind on itself for the prevention of h m and interference.
" UNCLOS, supra, note 22, art. 194, para. 1, states: "States shail take, individually or
jointly as appropriate, al1 measures consistent with this convention that are necessary to
prevent, reduce and convol pollution of the marine environment fiom any source, using
for this purpose the best practical means at their disposa1 and in accordance with their
capabilities, and they shall endeavour to harmonize their policies in this comection." On
the efiect of this provision, see supra, note 22. See also, Convention on Environmental
Impact Assessrnent in a Transboundary Context, 25 February 1991, ECE Doc.
E.ECE. 1250 (1 99 1), reprinted in 30 I.L.M. 800 [hereinafier Espoo Convention] (not yet
in force), art. 2, para. 1 : "The Parties shall, individual or jointly, take al1 appropriate and
effective measures to prevent, reduce and control significant adverse transboundary
environmental impact [sic]from proposed activities."
These legal obligations provide t h e basis for the attribution of legal
responsibility to States?
If the a a s of a State, including those of its natural
persons and corporate nationals, should breach one of these obligations,
restitution would be required?'
C. Techniaues of Bios~hereManagement
The basic tool of biosphere management is biosphere risk assessment, which
combines the elements of environmental impact assessment and life cycle
assessment. These techniques are predictive in nature, seeking to anticipate
and prevent a n adverse effects o n the biosphere and deriving their
justif cation from the principle of precautionary rneasures. Environmental
impact assessment wvas developed to deal with activities, while life cycle
"Thus in pnnciple an act or omission which produces a result which is on its face a
breach of a legal obligation gives rise to responsibility in international laa, whether the
obligation rests on treaty, custom, or some other basis." 1. B r o d i e . Principles of Public
Infernationul Law,4th ed. (Oxford: Clarendon Press, 1990) at 436. "[Tlhe major issue in
a given situation is whether there has been a breach of duty ... ." Ibid. at 435.
'6
"The essential principle contained in the actual notion of an illegal act -- a pnnciple
which seems to be established by international practice and in particular by the decisions
of arbitral tribunals -- is that reparation must, as far as possible, wipe out al1 the
consequences of the illegal act and re-establish the situation which would, in al1
probability, have existed if that act had not been committed. Restitution in kind, or, if
this is not possible, payment of a sum corresponding to the value which a restitution in
kind would bear; the award, if need be, of damages for loss sustained which would not be
covered by restitution in kind or payment in place of it -- such are the principles which
should serve to determine the amount of compensation for an act contrary to international
law.'' Chorrow Factory (Indernnity) (1928), P.C.I.J., Ser. A, no. 17, at 47.
"
150
assessment was instituted as a method to deal expressly with substances and is
now applied to manufactured and processed goods as well.
1. Current Techniaues
(a) Environmental Im~actAssessment
The procedure knoivn as "environmental impact assessmenr" has been
described as "a process for examining, analysing and assessing proposed
activities in order to minimise environmental degradation and maximise the
~~
potential for environmental1 -sound and sustainable d e v e l ~ ~ m e n t "It. was
developed in the United States and has served as a basis for similar domestic
The need for environmental impact
legislation in more than 75 S r a t e ~ . ' ~
assessment is generally recognized as an emerging principle of customainternational la^.^'
Organization for Economic Co-operation and Development [hereinafter OECD].
Environmental Directorate and Trade Directorate, Joint Session of Trade and
Environment Experts, Environmental Principles and Concepts (Drafi), 25 May 1994,
para. 63, OECD Doc. COM/ENV/TD(93)117/REVl Fereinafter OECD Drafl
Princip les].
"
N.A. Robinson, "International Trends in Environmental Impact Assessment" (1 992) 19
Env. Aff. 591 at 2 13 and P.H.Sand, "Lessons Learned in Global Environmental
Govemance" (199 1) 18 Env. Aff. 213 at 256.
9'
Robinson, ibid. at 602 and C. Klein-Chesivoir, "Avoiding Environrnental Injury: The
Case for Widespread Uses of Environmental Impact Assessments in International
Development Projects" (1990) 30 Va. J. Int'l L. 517 at 525.
'O
Preventive i n nature3' and linked to the principle of precautionary measures3?,
environmental impact assessment is used by States and international
organizations as a "basic management t o 0 1 " ~and
~ is "one of the few
environmental management tools to consider ... [the] cumulative impacts" of
"the worldwide accumulation of many discrete, isolated a ~ t s " ~ ' .
Environmental impact assessment is considered an essential method for
developing adequate ecological knowledge in order to "define impacts for
purposes of nsk asse~srnents"~~
and for raising "the consciousness of economic
planners to environmental c ~ n c e r n s " ~ ~ .
Environmental impact assessment "provides a process for institutionalizing foresight".
Robinson, supra, note 29 at 590. (emphasis in original)
"
32 Without sufficient knowledge gained from environmental impact assessments about
the risks associated with substances and activities. the principle of precautionary
rneasures would be applied. See e.g., H. Thiel & E.J. Foell. "Environmental Risk
Assessment for Manganese Nodule Mining and Application of the Precautionary
Principle" in A. Couper & E. Gold, eds, The Marine Environment and Stisrainable
Developmenr: Law, Policy, and Science (Honolulu: Law of the Sea Institute, 1993) 276 at
237.
j3
Robinson, supra, note 29 at 603.
34 Ibid. at 604. Cumulative impact has been defined as "the incremental a d o r
synergistic impacts of several projects taken together". G. Kamaras, "Cumulative Impact
Assessment: A Comparison of Federal and State Environmental Review Provisionso'
(1993) 57 Alb. L. Rev. 1 13 at 1 13. See also, ibid. at 118-119. Cumulative impact
assessment "is an important tool" for preventing "the capacity of the environmental
media or natural resources to absorb the impacts" "fiorn being reached". Ibid. at 1 15.
"
Thiel& Foell, supra, note 32 at 226.
36
Klein-Chesivoir, supra, note 30 at 5 18.
152
Vanous versions of the principle of environmental i m p a a assessment mav be
found in a wide range of instruments of international environmental law,"
with several non-binding instmments dedicated to the principle itselp8. The
broadest environmental i m p a a assessment instmment to date is Annex 1 to
the M n d d Protocol t o the A~itnrcticT r e n ~ A
~ n~n.a 1 is comprehensive,
"
See e.g., World Charter. supra. note 15. Principle 1 1 (c). applied to activities that may
"disturb nature" in order to "minimize potential adverse effects": Rio Declararion. supra.
note 17, Principle 17, applied to activities "likely to have a significant adverse impact";
Convention on Biological Diversity. 5 June 1 992. UN Doc. UNEP/Bio.DivlN-7-MC. 514
(1 992), repnnted in 3 1 I.L.M. 8 1 8 [hereinafier Biodiversity Convenrion] (entered into
force 29 December 1993). art. 14, applied to projects "likely to have significant adverse
effects on biological diversity with a view to avoiding or minimizing such effects";
UnifedNationr Framework Convention on Climate Change, 9 M a y 1992. UN Doc.
.MAC .Z7/ 1 8 (Part II)/Add. 1 and Corr. l ( 1 992), reprinted in 3 1 1.L .M. 85 1 [hereinafter
Climate Change Convention] (entered into force 2 1 March 1994). art. 4, para. l ( f ) ,
applied for "minimizing adverse effects on the economy, on public health and on the
environment", and UNCLOS, supra, note 22, art. 206, applied where "States have
reasonable grounds for believing that planned activities ... may cause substantial pollution
of or significant and h m h l changes to the marine environment".
See Espoo Convention, supra, note 25; Goals and Principles of Environmental Impact
Assessmenf, U N E P Dec. 14/25, UNEP Doc. GC. 14/ 17 / h e x III ( 198 7) Fereinafter
UNEP EIA Principles]; Recommendation Concerning An Environmental Checklistfor
DeveIopment Assistance, OECD Doc. C(89)2(Finai) (1989), reprinted in 28 I.L.M. 13 14.
and R.J.A. Goodland, "The World Bank's Environmental Assessrnent Policy" (1 99 1 ) 14
Hastings Int'l & Cornp. L. Rev. 8 1 1 .
38
"Environmental Impact Asses~rnent'~,
Annex 1 to the Madrid Protocol, supra, note 24
[hereinafter Annex IJ.
39
153
innovative4* and addresses some, but not all, of the shortcomings of traditional
environmental impact assessment procedures".
The typical steps taken in an environmental impact assessrnent are illustrated
in the procedure adopted by the World Bank. It involves "screening the
proposal; preparing an initial executive project summary; prepanng Terms of
Reference for an environmental assessment; prepanng the assessment;
reviewing the assessment and incorporating its findings into the project; and
conducting post-project e~aluation".~'Post-project evaluation is not as uldelv
included, but is considered "an enormouslv useful and innovative
tep"."^
See F. Francioni, "The Madrid Protocol on the Protection of the Antarctic
Environment" (1993) 28 Tex. Int'l L.J. 47 at 60-70 and K.R. Simmonds. The htarcric
Cmventiom (London: Simmonds & Hill, 1993) at 23.
'O
The environrnental impact assessment process has been criticized because "the scope
of the process often applies only to projects, not policies, programs, new products or new
technologies; it only applies to new activities, not existing ones; its science may be poor
or inadequate; there exists a lack of opportunîties for public involvement; there are weak
links between the E.I.A. process and the decision taken about the proposal; and there is
inadequate post-project analysis". P.S. Elder, "Sustainability" (1991) 36 McGill L.J. 83 1
at 843. Concems also have been raised about the classes of projects which require
environrnental impact assessments. See Klein-Chesivoir, supro, note 30 at 533.
Robinson, supra, note 29 at 603. These steps are similar to the environmental impact
assessment procedures adopted in Canada and the United States. Ibid.
154
The elements of an environmental impact assessment instmment usually
indude the obligation to assess the environmental impact of a specified project
and the degree of potential adverse effects on a specified ecosystem;
notification to other States of possible adverse effects of the project within
their jurisdiction and control; exchange of scientific and other information on
the possible adverse effects in order to evaluate these effeas; independent
third-party ewluation of the possible adverse effects, if the potentially affected
States cannot agree; provision of a final report to be made available to
potentiallv affected States; dispute settlement procedures; post-project
analysis, and public participation in the pro ces^."^ Other inforniation often
found in an environmental impact assessment includes possible and prohibited
alternatives to the proposed project, mitigation measures and an assessment of
their effect, gaps in knowledge and uncertainties uncovered, potential effect on
areas beyond State jurisdiction and control, and monitoring programmes.4s
" These elements are derived fiom the Espoo Convention, supra, note 25.
See also.
Robinson, ibid. at 608-609.
This information is based on the requirements of the Espoo Convenrion, ibid., and the
U N E P EIA Pnnciples, supra, note 38.
'"
155
[b) Life Cycle Assessrnent
If a panicular substance is introduced into the biosphere, there should be no
nsk of probability that the substance $411 have an adverse effect on any
ecosvstem during the lifetime of the substance Where this risk is uncertain,
introduction of the substance should be prevented. Life cycle assessment is a
procedure which attempts to determine the nsk of a substance having an
adverse effect on an ecosvstem. It was developed by industry, panicularlv the
chernicals sector, in order to account for "the environmental soundness of the
whole life cycle of the production
pro ces^".'^
The goal of life cycle assessment is to eliminate to the greatest extent possible,
h
effecrs on ecosystenis."i Such prevention is
substances ~ l t adverse
accomplished through development of clean technologies, which are "total
'' E.B. Weiss, "Environrnentally Sustainable Competitiveness: A Comment" (1993) 102
Yale L.J. 2 123 at 2 138. See also, OECD Draft Pnnciples, supra,note 28, para. 6 1. Life
cycle assessment is "an objective process to evaluate the environmental burdens
associated with a product, process, or activity by identifjring and quantiQing energy and
materials used and wastes released to the environment, to assess the impact of those
energy and material uses and releases to the environment, and to evaluate and irnplement
opportunities to affect environmental improvements. The assessment includes the entire
life cycle of the product, process or activity, encompassing extracting and processing raw
materials, manufacturing, transportation, and distribution, use, reuse, maintenance,
recycling and final disposai". OECD Draft Principles, ibid at para. 60.
"
OECD Draft Principles, ibid. at para. 53.
156
systems for preventing pollution throughout the life-cycle of a product"48 and
which provide a means of implementing the principle of precautionary
in its formative stages," life cyde assessrnent is applied to
m e a s ~ r e s ' ~ Still
.
manufactured and processed goods as well as substances.5' It is intended to
replace traditional "end-of-the-pipe" methods of environmental management5'
with a "cradle-to-grave" approach which, with its potential for recvcling and
reuse, could result in "cradle-to-cradle" biosphere management?
'' Ibid
"Key characteristics of clean technologies include: the use of as liale energy and
raw material inputs as possible per unit of product output; minimal releases to air. water
and soi1 during fabrication and use of the product; the production of goods with reduced
or no harmfül components; and maximisation of the durability and lifetime of products
and their re-usability." Ibid.
'''See ibid. at para. 54 and R.M. M'Gonigle et al., "Taking Uncenainty Senously: From
Permissive Regulation to Preventative Design in Environmental Decision Making"
(1 994) 32 Osgoode Hall L.J. 99 at 161 and 165.
O'
OECD Draft Principles, ibid. at para. 62.
" Ibid. at para. 61.
The "end-of-the-pipe" method of environmental management prescribes Ievels of
substances that may be introduced into the environment, and has access to enforcement
powers when prescribed levels are exceeded. See generally, M'Gonigle et al.,supra,
note 49 at 129-138. Levels are typically reduced only when it is certain that damage has
occurred in an ecosystem. On the technical problems of "end-of-the-pipe" solutions, see
ibid. at 149- 150.
52
s3
See OECD Draft Principles, supra, note 28, para. 60.
157
One method of life cyde assessrnent being developed for international
application is the "prior justificationwproced~re.~'Originally designed for
assessing the disposal of wastes at seaqssthis method could be modified to
make it applicable to any substance which may be introduced into any
ecosystem. For any substance, the effects of which on an ecosystem are
unknown, an applicant is required to obtain a permit before being allowed to
introduce the substance into an ecosysten~.'~
The first stage of the application procedure eliminates hazardous substances
"on the basis of sound waste management p r i n ~ i p l e s " .In
~ ~the second stage,
an independent third partv assesses applications according to the nature of the
substance, the amount of reduction and prevention at source and "the
availability of technologically feasible alternatives to d i s p o ~ a l " .If~ the
~
introduction of a substance c m be prevented at source, the applicant "inust
"
M'Gonigle et al., supra. note 49 at 16 1- 162.
55
Ibid. at 162.
j6
Ib id.
57
Ib id.
58
Ibid. at 164.
158
formulate and implement a waste prevention ~trategy".'~The procedure
provides pnonties for substance management as follows: "( 1 ) waste prevention;
(2) on-site revcling; (3) re-use; (4) destruction of hazardous constituents; (5)
treatment to reduce or remove the hazard; and (6) disposa1 into land, air and
water?"'
If disposa1 is indicated, "the applicant must characterize the
proposed disposa1 method and disposa1 area, and assess the risk to the
environment", taking into consideration available alternatives, wvhich also must
be assessed?
The third stage requires that an opportunity be given to other
States to "object to, or comment on, the proposed disposal operation ...
[stating] "wvhat alternatives are available or whv the proposed operation is
considered harn-iful, and ... supponed by scientific arguinent
2. Econornic Incentives
{a) The Polluter Pavs P r i n c i ~ l eand Environmental Cost Internalization
Biosphere management imposes additional and often unanticipated financial
costs to both the public and private sectors when methods and technologies
''
Ibid. Such a strategy includes specific reduction targets and monitoring proposals.
Ibid
Ibid.
61
Ibid. at 165.
6'
Ibid.
159
must be developed for the prevention, reduaion and control of adverse effects
to the biosphere. Traditionally, the pnce of goods does not include the costs
to the public and pnvate seaors for clean-up, compensation and loss of natural
"resource" use, which may anse from the production of goods. These costs are
extemalities, i.e., costs that are "extemal to the resource user's decisionmaking
c a l c ~ l u s " .Efforts
~~
are now under way to intemalize environmental
ex~ernalitiesby requiring manufacturers and producers to absorb the costs of
the adverse effects on ecosystems arising from their production and processing
methods. The basic method for cost intemalization is expressed in the
"polluter pays principle".
According to the polluter païs principle, the panv responsible for the adverse
effect ("the polluter") "should bear the expense of carrving out pollution
prevention measures or paving for damage caused bv p ~ l l u r i o n " . ~This
"
R.B. Stewart, "Models for Environmental Reguiation: Central Planning versus Marketbased Approaches" (1 992) 19 Env. Aff. 547 at 547-548.
63
OECD Draft Principles, supra, note 28, para. 29. The polluter pays principle "means
that the polluter should bear the expenses of canying out the ... measures decided by
public authorities to ensure that the environment is in an acceptable state. In other words.
the costs of these measures should be reflected in the cost of goods and services which
cause pollution in production andor consurnption. Such measures should not be
accompanied by subsidies that wouid create significant distortions in international trade
and investment." "The Polluter Pays Principle: Definition, Analysis, Implementation",
OECD Doc. C(72) 128 (1 972), cited in OECD Draft Principles, ibid.
160
principle was developed by the OECD in the early 1970s "to encourage
intemalization of environmental costs in price and markets and to prevent the
problem of made distortions which might result from different pollution
abatement financing r n ~ d e l s " .Interndizatlon
~~
of environmental costs
"implies that market prices should reflect the environmental costs of the
production and use of a product in terms of natural resource utilisation,
pollution, waste generation, consumption, disposal and other factor^".^' Cost
intemalization requires that environmental costs be quantified and cost
recovery allocated either directly to the consumer and the general public or
indirectly through charges to the p ~ l l u t e r s . ~ ~
The environmental cost intemalization mode1 is not nlthour its problems. I t
suffers "not onlv from a lack of information about the e.xtenr and probabilitv
of possible environmental damage and the irnpossibilitv of calculating the cost
65
C. Stevens, "The OECD Guiding Pinciples Revisited" (1 993) 23 Env. L. 607 at 608.
OECD Dr& Principles, supra, note 28, para. 34. "The intemalisation of
environmental costs is one of the main objectives of environmental policy and has been a
focal point of environmental economics. It underlies the conceptual and analytical work
in such areas as resource pricing, use of economic instruments in environmental policy,
calculation of environmental costs and benefits, and green accounting methods." Ibid.
66
'' Ibid. at para. 3 7.
161
of environmental risk, but also from a marked unwillingness on society's pan
to bear the economic consequences of full social cost i n t e r n a l i z a t i ~ n " . ~ ~
The difficulties in implementing environmental cost intemalization are
particularly evident in international efforts to encourage the participation of
less developed countries in reducing ozone-depleting substances, greenhouse
gases and d e f o r e ~ t a t i o n .However,
~~
"where no central authonty exists that
can identiQ the pollutant or the polluter or manage enforcement", the polluter
pays principle cannot be implemented effectively.''
The polluter pavs principle first appeared in a n international treatv in the
preamble to the I~itrnmtiorialCOI~VOI~~OIZ
Q I I Oïl Pullutioi~Prepfiirdrirss. Rrspuiisr
ailn
Cooperïztio~i,signed in London in 1990." In other global environmental
E. Rehbinder- "Environmental Regulation Through Fiscal and Economic Incentives
a Federalist System" (1993) 20 Ecology L.Q. 57 at 67.
68
'' U. Kettlewell, "The Answer To Global Pollution? A Critical Examination of the
Problems and Potential of the Polluter-Pays Principle" (1 992) 3 Colo. J. Int'l Env. L. &
Pol'y 429 at 474-477.
'O
Kettlewell, ibid at 477.
30 November 1990, reprinted in 30 I.L.M. 735. See H. Smets, "The Poiluter Pays
Principle in the Early 1990s" in Luigi Campiglio et al., eds, The Environrnenr Mer Rio:
lniernational Law and Economics (London: Graham & Trotman, 1994) 131 at 133. On
the legd history and development of the polluter pays principle, see ibid at 131 - 133 and
Kettlewell, supra, note 69 at 43 1-437. On initiatives to review the principle, see
Stevens, supra, note 65.
162
instruments, however, only Principle 16 of the Rio Declaration" addresses the
polluter pays principle and the "broader" p r i n ~ i p l e 'of
~ intemalization of
environmental costs.
A significant legal effea of the polluter pays pnnciple is its implication that
polluters are subject to strict liability for any adverse effect on ecosystems for
which thev are responsible. In the field of liability for "maritime
environmental impairment", strict liability has been adopted and is viewed as
an "effective application" of the polluter pays principle7". Because the polluter
is responsible for the costs arising Çrom his or her actions, strict liabilitv is seen
as a deterrent for conduct which causes or is iikely to cause pollution and as
'' Pnnciple 16 of the Rio Declarafion, supra, note 17, states: "National authorities should
endeavour to promote the intemalization of environmental costs and the use of economic
instruments, taking into account the approach that the polluter should, in principle, bear
the cost of pollution, with due regard to the public interest and without distorting
international trade and investrnent." For an analysis of Principle 16, see Smets, ibid at
136-141.
'
Smets, ibid. at 134.
P. Wetterstein, "Trends in Maritime Environmentai Impairment Liability" [1994] 2
Lloyd's Mar. & Corn. L.Q. 230 at 242. The liability aspects of the polluter pays
principle have been raised with the International Law Commission. International Law
Commission, hiinth Report on International Liabilityfor Injurious Consequences Arising
Out ofActs Not Prohibited by international Law, UN GAOR, 45th Session, para. 75. UN
Doc. A/CN.4/450 (1993).
"
163
"the best incentive to take al1 necessary c a ~ t i o n " . ' ~As well, fault-based
liability does "not effectively deal with environmental pollution and the
resulting h a m ~ " .Damages
~~
could indude al1 c o s t ~ , induding
~'
those arising
from accidental adverse e f f e c t ~ .In~ this
~ regard, i t is interesting to note that
the polluter pays principle is conspicuously absent from the more recent
binding treatv instruments, such as the Ozolie Coiiventio~i,'~
the Biodiversi~
Cmive~itiori~~
and the Climite Change Cuir ventions' .
To assist in environmentd cost intemalization, incentives are offered for the
development of the clean technologv and processes necessam to prevent,
D. Wilkinson, "Moving the Boundaries of Compensable Environmental Darnage
Caused by Marine Oil Spills: The Effect of Two New International Protocols" (1993) 5 J.
Env. L. 71 at 80.
75
"
Kettlewell. stipra. note 69 at 465.
" Smets, supra. note 7 1 at 134. As interpreted in the Rio Declaraiiou, "environmental
costs" include the costs arising from pollution prevention. reduction and control: darnage
to third parties, including victims of pollution; ecological damage, which includes
"damage to the environment in generai, to the ecological system, compensation to public
authonties for residuai damage [and] fines for excessive pollution", and environmentd
costs of intemalization. Ibid.
See Smets, ibid. at 140- 141 and 143.
Viennu Conventionfor Protection of the Ozone Layer, 22 March 1985, UN Doc.
UNEPfiG.53 5 (1 985), repnnted in 26 I.L.M. 15 16 [hereinafier Ozone Layer Convenrion]
(entered into force 22 September 198 8).
79
'O
Supra, note 3 7.
"
Supra, note 37.
164
reduce and control the adverse effects of activities and substances on
ecosystems. These incentives include subsidies, the traditional means of
support, as wetl as market-based and regdatory approaches.
(b) Subsidies
Although internalization of environmental costs was developed to eliminate
subsidization of development activities and of the production of goods,
exceptions are made to promote the prevention, reduction or control of adverse
effects caused by production and de~elopment.~'The European Coiiimunit\~,
e-g., "allows emlronmental subsidies to facilitate the irnplemenration of new
environmental standards if this assistance does not exceed 15 per cent of the
investment and is granted only to finns in operation for two ~ e a r s " . ' ~
Generallv, the experience nlthin the European Communitv is that intra-State
8' Stevens, supra, note 65 at 608-609. "Govemmental assistance for pollution control
might be given: 1) to ease transition periods when especially stringent pollution control
regimes are being irnpiemented; 2) to stimulate the development of new pollution control
technologies; and 3) in the context of measures to achieve specific socio-economic
objectives, such as the reduction of senous interregional imbalances. Any assistance
granted under the OECD exceptions should be given for a fixed amount of time in a
clearly defined program and should not create significant distortions in international trade
and investment." ibid. at 609. See also, Srnets, supra, note 71 at 137- 140.
'' OECD Drafi Principles?supra, note 28, para. 3 1. See also, Smets, ibid. at 139 and
Stevens, ibid. at 609-6 10.
165
subsidies are rare, with individual States prefemng to finance programs
without the financial support of other Community r n e r n b e r ~ . ~ ~
id Other Incentives
Other methods for cost internalization are market-based schemes and
govemment regulation. Market-based incentives, also known as economic
i n s t ~ u m e n t s"impose
,~~
a tax or an equivalent price incentive ... to reduce
pollution" in order to meet govemrnent-set standards? With public
regulation, governments "instruct each resource user on exactly how to operate
its activities" by means of performance standards which "require resource users
to achieve a given, uniform level of environmental perfomiance but allow them
some flexibilitv in choosing the specific technology to achieve that
performance
While each approach has its supporters, both are necessary because experience
shows that environmental laws are most effective when combined with
84
Smets, ibid at 141. For examples of intra-State subsidies, see ibid. at 142- 143.
85
OECD Draft Principles, supra, note 28, para. 38.
86
Stewart, supra, note 63 at 548.
87
Ibid.
166
economic in cent ive^.^' Govemment enforcement of standards is the most
important "weapon in preventing environmental degradati~n"'~
and may be
necessary until adequate information is available on the adverse effects of
substances and processesgo. Where appropnate, the two forms of incentiw can
be combined for effective r e s ~ l t s . ~ '
fi) Market-based Incentives
Available market-based incentives include environmental taxes, environmental
user charges. deposit-refund systems, tradeable emission permits, eco-Iabelling
and financial assistance.
The theorv underlhing environmental taxes and other charges is "that each
emitter \vil1 reduce its ernissions to the point that its costs of control beconie as
See P. Weinberg. "Environmental Protection in the Next Decades: Moving fiom Clean
Up to Prevention" (1994) 27 Loy. L.A.L. Rev. 1 145 at 1147.
90
''
Stewart, supra, note 63 at 554-555.
See e.g., ibid. at 555 and J.B. Nicholson, "European Economic Comrnunity -Environmental Policy -- Economic and Fiscal Instruments -- Report of the Working
Group of Experts fiom the Member States Proposes the Use of Economic and Fiscal
Instruments to Attain Community-wide Environmental Goals" (1 99 1) 2 1 Ga. J. Int '1 Br
Comp. L. 285 at 290.
167
expensive as paying the tax
...".92
Such a tax could be assessed against
substances proportional to the extent that they adversely affect e c o ~ ~ s t e r n s . ~ ~
Environmental tax proposais indude a levy on vehides and other machinerv
according to the degree of pollutant emissionsg4and a charge analogous to a
value-added tax, which would intemalize the cost of pollution at each stage of
the manufaauring or production processgs.
A variation on the environmental tax is the "user pays principle" which
provides that "the user of a public facilitv, or consumer of a public good, pavs
for the environmental good or service or the damages which mav anse from
that use".96 Such fees could be charged for the use of public facilities, such as
national p a r h and game land preserves, and to cover the costs of presening
and maintaining wildemess areas and forests where harvesting is pr~hibited.~'
Overlapping somewhat ~ l t environmental
h
tax schemes. consumer "users"
9'
Stewart, ibid. at 552.
See Sand, supra, note 29 at 257; Kettlewell, supra, note 69 at 468, and Nicholson,
supra, note 91 at 289-290. For an ovenriewof pollution taxes, see Sand, ibid at 257-259.
93
94
Nicholson, ibid. at 29 1.
95
Kettlewell, supra, note 69 at 469 and Nicholson, ibid at 303.
96
OECD Drafi Principles, supra, note 28. para. 39.
168
could be charged for the environmental costs ansing fiom the use of nonrenewable " r e s o ~ r c e s " .User-pay
~~
schemes have also been proposed for the
disposal of wastes in public l a n d f i l l ~ .Intemationdly,
~~
"attempts are being
made to extend the user pays pnnciple to shared resources and the global
commons ** .100
A deposit-refund system combines a user fee with a subsidy. Under this
scheme, polluters pay a government fee "for each unit of pollutanr generated;
when they properly treat and dispose of the waste, they receive a refund".lO'
Deposit-refund systems could be applied to emissions from al1 modes of
transponation. The fee would be retumed to owners who emplov dean
technologv. 'O'
Another incentive for industry to develop clean technology is the tradeable
allowance concept. For this scheme to work, government "imposes a limit on
98
See ibid.and Nicholson, supra, note 91 at 289-290.
See e.g., Frank Ackeman, "Waste Management -- Taxing The Trash Away" (June
1992) Env't 2 at 2.
99
'"
OECD Drafi Principles, supra, note 28, para. 40.
Io'
Stewart, supru, note 63 at 553.
'O2
Nicholson, supra, note 9 1 at 29 1.
169
the total quantity of emissions, issues allowances adding up to that total, and
then allows emitters to buy and sel1 allowances among each other".Io3
Emissions must not exceed the govemment linut; if they do, heavy penalties
are imposed on t r a n s g - r e s s ~ r s .Under
~ ~ ~ tradeable alloivance schemes, polluters
can meet the govemment limits "either bv reducing emissions or by buying
'emissions credits' from other polluters that have reduced emissions in excess
of their ob~igations."'~'An innovative variation on tradeable allowances is rhe
proposa1 for an environmental credit card: "Each citizen of the global
community would receive a specified amount of pollution rights, which, if
exceeded, would subject him to pollution l i a b i l i t ~ . " ' ~ ~
Eco-labelling is a CO-operativeprogram betweeii govemment and industnp for
indicating to consumers which producers make an effort to prevent, reduce or
control adverse effects on ecosystems during the production and packaging of
their goods. The standards for necessary effort are set bv govemment: labels,
'O3
Stewart, supra, note 63 at 553.
'OS J.P. Dwyer, "The Use of Market Incentives in Controlling Air Pollution: California's
Marketable Permits Prograrn" (1993) 20 Ecology L.Q. 1O3 at 104. See also, C. W. Howe.
"Tradable Discharge Permits: Functioning, Historical Applications, and International
Potential" (1993) 4 Colo. J. Int'l Env. L.& Pol'y 370.
IM
Kettlewell, supra, note 69 at 470.
170
provided to producers who meet the government standards, are placed on
consumer goods; consumers may choose to purchase these goods because of
their "environmentally-fiiendlywquality. 'O7 Countnes with eco-label programs
include Canada, Germany and Japan; Scandinavian countries, through the
Nordic Council, apply the program regiondly. 'O8 Eco-labels have been
cx-iticized for having standards which are too subjectivefo9and for imposing
non-tariff bamers to trade
'
'O.
Of the financial assistance incentives available, debt-for-nature swaps and
international financing of ecologically appropriate projects illustrate efforts on
a global scale to eliminate and reduce adverse effects of pollutants. Debt-fornature swaps occur when private or govemment creditors "reduce the debts of
developing countnes in exchange for environmental consenration measures .1 1 1
17
'O7
See ibid. at 469 and Sand, supra, note 29 at 259-26 1.
'O8
Sand, ibid. at 26 1.
'O9
Kettlewell, supra, note 69 at 469.
M. Reiterer, "The International Legal Aspects of Process and Production Methods"
(1 994) 17 World Comp. L. & Econ. Rev. 1 11 at 120-121.
"O
'
M.S. Sher, T a n Lawyers Save the Rain Forest? Enforcing the Second Generation of
Debt-for-Nature Swaps" (1 993) 17 Ham. Env. L.J. 151 at 151. In 1984, the World
Wildlife Fund "proposed a scheme by which conservation organisations 'bought' a
portion of a debtor's obligation, fiom a commercial bank on the market, at less than face
value. This obligation was then converted into bonds in the currency of the debtor state.
at something less than the onginal debt. These funds were then used by the local
171
The rntio~tnlefor the swaps is that debt in less developed countries is a basic
cause of ecological degradation.'''
Debt-for-nature nvaps may not be the most
effective means for promoting conservation; direct financing may be a more
appropriate alternative, 113
A notable example of a direct financing incentive which contributes specificallv
to environmental cost internalization is the Global En\lronment Facilitv,
established as a three-year pilot program in 1991
'
14.
The Facility provides
"grants or concessional loans ... to developing countnes to help them
implement programs that protect the global environment ".l i s Assistance is
available for large-scale technical and assistance projects and for smaller,
"innovative" grant projects implemented bv non-governmental organizaiions
environmentalist groups for conservation purposeso'.L.C. W. Wee, "Debt-for-Nature
Swaps, a Reassessment of their Significance in International Environmental Law" (1 994)
6 J. Env. L. 57 at 58.
"'Wee, ibid.
Il3
See M.L. Minzi, "The
Pied Piper of Debt-for-Nature Swaps" (1993) 17 U. Pa. J. Int'l
Bus. L. 37.
Il4
A. Woodo"The Global Environment Facility Pilot Phase" (1993) 5 Int'l Env. Aff. 2 18
at 219.
11'
"World Bank: Documents Conceming the Establishment of the Global Encironment
Facility" (199 1) 30 I.L.M. 1735 at 1739 [hereinafter World Bank Documenrs].
172
and community groups.
'
l6
Financing is available for projects related to
protection of the ozone layer, Iimiting emissions of greenhouse gases,
protection of biodiversity and protection of international waters.''' The
program was renewed in 1994.
{ii) Govemment Reeulation
The three most common forms of govemment regulation panicularlv
applicable in international environmental law are standard setting, licence or
permit programs, and lists.'19
While market-based approaches provide important incentives, a need still
exists for international standard setting: ( 1) "[Tlhere mav be certain minimum
levels of environmental protection and natural resource conservation which
should shape the development pro ces^";"^ (2) minimum standards "help to
Il6
Wood, supro,note 1 14 at 2 19-225.
'17
World Bank Documents, supra, note 1 15 at 1739- 1740.
"'M.G.Schnerre, "The Restnictured World Bank Facility" (June-August 1994) ASIL
Newsletter 14 at 15.
I l 9 A. Kiss & D. Shelton, international Environmental Law (Ardsley-on-Hudson. NY:
Transnational Publishers, 199 1) at 155.
I2O
Weiss, supra, note 46 at 2 134.
173
resolve the potential tension" between present and future generations;"' (3)
"experts dearly believe that effective action ... can only be achieved through
[transnational] a ~ t i o n ; ' ~and
' (4) without standards, polluters in States with
higher standards incur greater production costs and suffer a corresponding loss
of competitiveness lZ3.
Four classes of standards can be distinbwished: qualitv standards. which "fur
the maximum levels of pollution"; emission standards, which "speciq the
quantity of pollutants, or their concentration in discharges, which can be
emitted bv a given source"; process standards, which "establish certain
specifications applicable to fued installations", and product standards. which
"fur the physical or chemical composition of i t e n ~ s " . 'Of
~ ~these, international
standards for processes and products niav have a legal effect in international
environmental Iaw. "j
'"
ibid.
"'Nicholson, supra, note 91 at 300. See also, ibid. at 300-301.
12'
See Kettlewell, supra, note 69 at 447 and Reiterer, supra, note 1 10 at 124.
'24
See Kiss & Shelton, supra, note 1 19 at 158-159.
'*' "Principle 1 1 [of the Rio Declmation, supra, note t 71 calls upon States to enact
effective environmental legislation which is to be understood in the light of Principle 15.
where the precautionary approach for the protection of the environment is advocated. ...
Principle 16, calling for the intemalization of environmental costs and the use of
economic instruments, introduçes indirectly the polluter-pays principle. ... [PJollution c m
174
International standards can be flexible to a certain extent in order t o reflect
"the fact that expected benefits and costs of any regime will Vary from state
tat te".^'^ Such asymmetncal standards are used "to induce broad state
acceptance of a regdatory regime". Iz7 In matters of international
environrnental law, the techniques of asymmetrical standard-setting include
selective incentives, such as access to funding, resources, markets and
technologv; differential treatv obligations according to each panv's
circumstances; regional solidaritv, where regional groups can more easilv
achieve a cominon standard and more easilv off-set asynimetnes, and
promotion of over-achievement bv setting national standards above the
minimuni international level.'"
Public regulation bv licensing prohibits activities unless a governnient permit
has been issued. For international environmental law, pemiits can be general
ofien arise at the production level. Thus Principles 1 1, 15 and 16 of the Rio Dedaration.
when read together, could be interpreted as a strong indication that not only product but
also process and production standards are legally relevant." Reiterer, supra. note 1 10 at
118-1 19.
G. Handl, "Environmental Security and Global Change: The Challenge IO
International Law" in W. Lang, H. Neuhold & K. Zemanek, eds, Environmental
Protection and International Law (London: Graham & Troûnan, 1991) 59 at 64.
See Sand, supra. note 29 at 220-236.
175
and applied to an entire class of activities, such as waste disposal, or specific
and applied on a case-by-case basis, e.g., for a specific substance or p r o j e ~ t . " ~
Licences, when issued by international organizations, "provide for the
reciprocal recognition ... by competent national authorities ".130 Altematively ,
reciprocal licensing could take place on a regional or bilateral level.
Lists are characteristic of international environmental law, perrnitting
substances to be classified according to their individual characteristics and
giving the regulations some f l e d b i l i t ~ ~The
' ~ ' use of lists is quite common in
the Iaw of the sea regarding the introduction of substances into bodies of
water. 13'
3. Bios~hereRisk Assessrnent
Biosphere risk assessnient is a predictive technique combining elements of
emlronmental impact assessments and life cycle assessments. It is premised
Iz9
See Kiss & Shelton, supra, note 119 at 155-156 and M'Gonigle
et
al., supra, note 49
at 151.
Sand. supra, note 29 at 250.
13'
Kiss & Shelton. supra, note 1 19 at 156.
13' Ibid. at 157- 158. Lists are also widely used in international instruments for the
protection of wildlife. Ibid
176
upon the biocentric moral perspective set t u t in Chapter II and incorporates
the four basic principles of international environmental law set out in Chapter
III and the three legal obligations for biosphere management set out in Section
B above. Biosphere nsk assessment represents a global approach to managing
the adverse effects of humankind's projects on dI biological entities-inecosvstems. I t is intended to applv to al1 projeas in al1 ecosystems, with
niodifications, where necessas., according to the nature of the activity, the
ecosvstem and the adverse effects. The basic elements of the procedure for
biosphere risk assessment are set out below and are worded as if the process
were operational.
la) S c o ~ eand Administration
Anv proposed project, and anv change to an existing or proposed project, is
subject to a biosphere risk asse~srnenr.'~~
To ensure preservation and
protection of the ecosystem project site and anv related ecosystems, permission
to undertake a project will not be granted unless the assessment process has
been completed and approved. 13'
See Madrid Prolocol, supra, note 24. art. 8, para. 1. 2 and 3. and Forld Charter.
supra, note 15, Principle 1 .
13)
IW
See Madrid Protocol, ibid at art. 3, para. Z(c).
177
The procedures required for biosphere nsk assessment are set by an
independent international decision maker ("the adrninistrator") according to
scientifically-based standards. The administrator is responsible for evaluating
project proposais to determine whether a proposed project should proceed, be
deferred or be rejected. Su& an adrninistrator is necessary in order to ensure
greater impartialitv and objectivity; greater capability for an assessment
of the overall environmental nsk, taking into account the possible
synergic effects of the vanous [projects]; and the possibility of an
extemal control and supervisory system able to authorize emergencv
measures and precautionary suspension of activi ties.
Without an independent administrator it is possible that the assessment
process wivill be viewed as "cosmetic" legitimization for projects with adverse
.
e f f e ~ t s ' ~ % nthat
d the decisions taken wi11 not be e n f ~ r c e d ' ~ 'International
standards, set bv independent experts drawn from the relevant fields, provide
( i ) the basis for detemining whether the potential adverse effects of proposed
projects are uncertain; (ii) in cases where projects are perniitted, what levels of
protection are required to avoid adverse effects; and (iii) what additional
measures are necessary to prevent anti-competitive conduct and trade
-
13'
-
Francioni, supra. note 40 at 65.
E.F. Foreman, "Protecting the Antarctic Environment: Will a Protocol Be Enough?"
(1992) 7 Am. U.J. Int'l L. & Pol'y 843 at 879.
13'
178
distortions, both of which could arise from the use of State-imposed
standards. '3
/b) The Assessment Process
The assessrnent process has two stages. a screening stage followed bv a
comprehensive review. In cases where the adverse effects of anv proposed
project on an ecosystem are uncertain, the adminisuator's determinations at
each stage are guided by the principle of precautionary measures. The effect of
a determination is either to defer the project until its uncenainties are
overcome or to terrninate it.
[i) Screenine Staee
At the screening stage, the appropriateness of the project is evaluated
' ~ ~ purpose of this
according to the biocentric pri~nafncirmoral d ~ t i e s . The
evaluation is tu ascertain the nature of the human interests which the
proposed project promotes and whether the interests promoted conflict with
the basic interests of non-human biological entities-in-ecosystems.
13'
See supra, text accompanying notes 120-123, and n.82.
'"
See Chapter II, supra,text accompanying notes 60-78.
Basic interests include, as appropriate to the biological entity, food, water, shelter,
security, love, play, creative expression, intimate relationships with nature and spiritual
I4O
179
If the proposed project promotes an exploitive non-basic interest"" and
conflicts with the basic interests of non-biological entities-in-ecosystems, the
proposed pro ject is rejected.'41
If the proposed project promotes a non-exploitive non-basic i n t e ~ e s tand
'~~
conflicts with the basic interests of non-biological entities-in-ecosystems, the
project is permitted if the project developer demonstrates that the project will
"promote and preserve the instrumental, intrinsic or inherent values of central
importance to the comrnunit~"~~',
and agrees to take al1 necessanr steps to
ensure that the project ndl result in the least intrusive adverse effects
("minimum impairment") and to make full restitution for anv impaiment
incuned. '45
growth. See ibid., text accompanying notes 8 1-85.
"'
Exploitive non-basic interests generally involve killing and destruction of biological
entities-in-ecosystems solely for private gain. See ibid.,text accompanying notes 86-87.
See ibid.,text accompanying note 90.
Non-exploitive non-basic interests generally demonstrate a purpose in the public
interest. See ibid., text accompanying notes 88-89.
See ibid.,text accompanying note 9 1.
See ibid.,text accompanying notes 92-93.
180
If the proposed projea promotes a basic human interest and conflicts with the
basic interests of non-human biological entities-in-ecosystems, the project will
be permitted if the project developer provides information ro demonstrate that
the conflict is u n a ~ o i d a b l e ' and
~ ~ , agrees to take dl necessary steps to ensure
that the subject matter of the conflict will, where possible, be shared equitablv;
that the projea will result in minimum impairment; and that full and
appropriate restitution will be made"".
lii) Com~rehensiveReview Stage
The comprehensive review stage detemines whether the proposed project has
addressed the issues of minimum impairment and appropriate restitution.
Whether a project minimallv impairs an econrstem, including amr biological
entities in it, is detemiined by reviewing the proposed project. the nature of
the proposed ecosystem project site, the possible adverse effects of the project
and the measures taken to eliminate or mitigate, to as great an extent as
possible, those effects. Restitution is determined according to the nature of
the adverse effect.
ibid.,text accompanying notes 95-96.
II6
See
14'
See ibid, text accompanying notes 97-98.
181
Information submitted on the question of minimum impairment will indude
al1 methods and data on which conclusions are based;I4' will identify "gaps in
knowledge and uncertainties encountered in compiling the inf~rmation",'"~
~.
and will provide a "non-technical summary" for public c o n ~ m e n t ' ~The
information required for the comprehensive review is as folloivs:
The Proiect
(a) a comprehensive description of the proposed project, "including its
purpose, location, duration and intensity";ls'
(b) a comprehensive description of al1 reasonable alternatives to the proposed
and
project, including the alternative of "not pr~ceeding";'~'
(c) where a proposed project includes the introduction into an ecosvsteni of
amrsubstances, the adverse effects of which are unknown, a life nrcle
assessrnent for those
-
-
See Annex 1 to the Madrid Prorocol, supra, note 39, art. 3, para. 2(c).
Id9
See ibid. at art. 3, para. (2)(j).
"O
See ibid. at art. 3, para. (2)(k) .
' See Madrid Protocol, supra, note 24, art. 3, para. 2(c)(i) and Annex 1, ibid. at art. 3,
para. 2(a).
15'
See ibid.
lS3
See supra, text accompanying notes 56-62.
182
The Ecosvstem
(a) a comprehensive description of the proposed ecosystem project site;* 54 and
(b) a comprehensively documented prediction of the future state of the
ecosystem in the absence of the proposed project.lS5
Adverse Effects
(a) a comprehensive description of any potential adverse effects of the
proposed project and of its alternatives on the proposed ecosvstem project site
and on any other ecosystem, along with the predicted c o n s e q ~ e n c e s ; ' ~ ~
(b) a comprehensive description of anv potential cumulative adverse effects
arising both from the various aspects of the project itself and in combination
with other "existing and known planned" projects;'s' and
(c) a comprehensive description of any unavoidable adverse effects of the
proposed project. lS8
Is4
See h e x 1, supra, note 39, art. 3, para. 2(b).
lS5
See ibid.
Is6
See ibid. at art. 3, para. 2(a).
See Madrid Protocol, supra, note 24, art. 3, para. Z(c)(ii) and Annex 1. ibid. at art. 3,
para. (2)(f). See also, supra, 11-34.
Is7
lS8
See Annex 1, ibid at art. 3, para. 2@).
183
Mitkation
(a) where the potential adverse effeas of the project inchide the death or
destruction of any biological entities, a comprehensive description of the
alternatives t o killing which would promote the human interests in
undenaking the projea and would, at the same time, result in minimal killing
or destniction; 1 5 9
(b) where the potential adverse effects include harm to habitats, a statenienr
explaining whv less intrusive, more naturallv integrative alternatives are not
feasible; 16*
(c) where substances are to be introduced into ecosvstems, a coniprehensive
description of the technical design and operational processes being developed
to niinin-iize the adverse effects of the substance in the short-term and to
eliminate the substances, to as great an extent as possible, in the long-terni;'b'
and
(d) where the potential adverse effeus give rise to an unavoidable conflict
between the basic interests of human and non-human biological entities, a
"9
See Chapter II, supra, text accompanying notes 109-1 1 1.
See ibid., text accompanying notes 1 12-1 18.
16'
See ibid., text accompanying notes 1 19-126.
184
comprehensive description of the plan for achieving equitable shanng and
minimal impact. lb2
Waste M a n a ~ e m e n t
(a) a comprehensive description of the elements of the waste management
plan. induding \vaste reduction. storage, removal, recycling, re-use and final
disposal; '63
(b) a comprehensive description of progams "for cleaning up existing wasre
disposa1 sites and abandoned work sites". and for analvsing and minimizing
the adverse effects of waste;16"and
(c) a comprehensive description showing how the wasre management plan
reduces the disposal of wastes "as far as practicable so as to minimize" anv
adverse effects on the ecosvsteni and to "minimize interference with" the
inherent worth of the e c o ~ ~ s r e r n . ' ~ ~
See ibid., text accompanying note 127. These strategies include wilderness
preservation, restoration, rotation, common conservation and design with nature. Ibid..
text accompanying notes 128- 143.
'61
'63 See Waste Disposal and Waste Management, Annex III to the Madrid Protocol,
supra, note 24, art. 1 , para. 3 and art. 8, para. 1 and 2(b) [hereinafier Annex III].
lW
See ibid. at art. 8, para. 2(a), 2(c) and 2(d).
'
See ibid at art. 1 , para. 2.
Clean Technolow and Environmental Cost Internalization
(a) a comprehensive description of the research and development being
undertaken,or proposed to be undenaken, in conjunaion with the proposed
project for development and implementation of clean technologies and
processes, which are intended to prevent, reduce and control the potential
adverse effects of the proposed project on the proposed ecosystem project site;
and
(b) a comprehensive description of the cost incentives available from the
sponsoring State or other sources for the intemalization of environmental costs
arising from the research, development and implementation of these clean
technologies and processes.'"
Monitoring
(a) a comprehensive description of the "regular and effective" monitoring
procedures to be implemented in order to "assess the impacts of ongoing
activities, including the verification of predicted impacts", and to provide for
the "early detection of the possible unforeseen effects of a c t i v i t i e ~ "and
;~~~
Ibb
See supra, Section C.2(c).
'61
See Madrid Protocol, supra, note 24, art. 3, para. 2(d) and 2(e).
186
(b) a comprehensive description of the monitoring procedures to 'ÏdentiQ and
provide early waming of any adverse effects",lb8 and to "assess and verify" any
adverse effects. 169
Post-Proiect Analvsis
(a) a comprehensive descnption of procedures for detecting and minimizing or
mitigating any unforeseen adverse effects, for monitoring compliance with the
conditions for project approval, for monitoring the effectiwness of mitigation
measures in the approved plan, for verifvng "past predictions" for future use.
and for providing earlv waming of, and effective response to, accident^."^
Restitution
(a) where potential adverse effects are expected t o result in hann to individual
non-human biological entities, a comprehensive description of the
rehabilitation plan or, in case of the death or destmcrion of individual nonhuman biological entities, a comprehensive descnption of the plan for
preserving the remaining species population and i ts habitat;'''
-
-
--
ILS
See ibid. at art. 3, para. (2)(c)(v).
'"
See Annex 1, supra, note 39, art. 5 .
See Madrid Prorocol, supra, note 24, art. 3, para. 2(c)(v) and Annex 1, ibid.at art. 3.
para. 2(g). See also, Espoo Convention,supra, note 25, art. 7 and Appendix V.
''O
17'
See Chapter II, supra, text accompanying note 1 5 1 .
187
(b) where potentially adverse effects are expected to result in the destruction
or the impossibilitv of regeneration of a species population, a coniprehensive
description of the plan for permanent protection of al1 remaining members of
the species or for limited protection until the species re-esrablishes itself;li2
and
(c) where potentially adverse effects are expected to panially destroy or
othenvise interfere with a habitat or ecosvstem, a comprehensive description of
the plan to restore the habitat or ecosystem to its original state. or if totallv
destroved, the plan to presenre the natural existence of non-human biological
entities in a habitat or ecosystem of the same or similar type.lT3
Liabili tv
Where a proposed project results in adverse effecrs unforeseen at the tinie of
the biosphere risk assessnient,
(a) a comprehensive description of the steps to be taken by the sponsoring
State for the "regular and wrifiable" collection of information which could be
used for the timelv modification, suspension or cancellation of the project, in
"' See ibid.,text accompanying notes 152-1 53.
'71
See ibid., text accompanying notes 1 54- 157.
188
order to eliminate, to as great an extent as possible, the unforeseen adverse
effects;
"'and
(b) a cornprehensive description of the means by which the sponsoring State
\vil1 pay al1 costs arising from the unforeseen adverse effects. l i s
Third Parties
(a) a draft, including a non-technical surnmav, of the comprehensive review
for public comment;' i6 and
(b) a comprehensive description of anv potential adverse effects of the
proposed project which may occur outside the area within the jurisdiction and
control of the State sponsoring the pro~ect.'~'
[ c ) Settlernent of D i s ~ u t e s
During the course of a biosphere risk assessment, disputes d l likelv arise
between the project developer and the general public or other private interests
17'
See Annex 1, supra, note 39, art. 5, para. 2(a).
"5
See supra, text accornpanying notes 74-78.
See Annex 1, supra, note 39, art. 3. The public cornments are taken into account by
the adrninistrator in the decision-making process.
176
Where adverse effects may occur outside the jurisdiction of the sponsoring State,
other States are given the oppominity to comment on and object to the proposed project
by indicating, based on scientific reasoning, other potentiai adverse effects and other
available alternatives and mitigation measures. See supra, text accompanying note 62.
On third-party notification procedures, see Espoo Convention,supra, note 25. art. 3.
189
within the State, or between the sponsoring State and other States and
international organizations with common biospheric concems. Those
opposing a proposed projea will allege that the ecosystems for which they are
responsible may be adversely affected by the project. The most common
disputes will likelv address disagreements over screening stage decisions, the
availabilitv and appropnateness of alternatives to the proposed project,
potential adverse effects and the choice and effectiveness of mitigation or
restitution measures.
In light of this eventuality, a procedure for the settlement of disputes will be
made a v a i ~ a b l e .The
~ ~ ~disputes wii1 be adjudicated by a panel of exFens, noc
connected to the biosphere nsk assessrnent in issue. The members of a panel
will be drawn from a roster of experts, consisting of one national from each
State, experienced in biosphere nsk assessnlent.'79 A panel will consist of three
members, with the parties to the dispute each appointing one meinber and the
two designated members agreeing on the third member, who will chair the
See e.g., Madrid Protocol, supra, note 24, Schedule on Arbitration [hereinafter
Arbitration Schedule]. See also, Espoo Convention, ibid at Appendix IV: Inquiry
Procedure bereinafter Inquiry Procedure].
17'
See e.g., Arbitration Schedule, ibid. at art. 2, para. 1.
190
panel.laOA panel will be empowered to decide whar course of action best
refiects a respect for nature, the fundamental biocentric moral imperative, and
the pnnciples for resolving conflicts between human interests and the basic
interests of non-humar. biological entities.''' To avoid undue delays, the
decision of a panel will be final and binding.lS2
lnquiry Procedure, supra, note 178,para. 2.
I8O
See e.g., ibid. at art. 3, para. 1 and
la'
See Chapter II, supra, text accompanying notes 101- 104.
'81
See Arbitration Schedule, supra, note 178. art. 1 1, para. 3.
PART THREE:
APPLICATION OF THE PRINCIPLES AND PRACTICE
OF INTERNATIONAL ENVIRONMENTAL LAW
TO SPACE ACTMTIES
Pan 1 set out the physical parameters of humankind's activities in outer space
and described the moral perspectives applicable to international environmental
law. Pan II a n a l j e d the basic principles of international environmental law in
order to develop a biocentnc approach to addressing environmental issues and
described the general principles and techniques of a proposed régime for
biosphere management. The purpose of Pan III is to apply the régime for
biosphere management to humankmd's space activities.
Chapter V analyses the current provisions for environmental protection in the
international law of outer space in order to determine the principles of
environmental space law and to ascertain what restrictions, if any, these
pnnciples impose on a biocentric approach to protection of the planetam
environnient and biosphere management. Chapter VI describes a proposed
protocol to the Outer S p c e Trenty on the protection and preservation of the
planetary environment from humankind's space projects. Chapter VI1 applies
a biosphere risk assessrnent to humankind's space projects in order to provide
a remedy for space debns, the first major adverse effect on the global and outer
space environments arising from space activities.
CHAPTER V: ENVIRONMENTAL PROTECTION IN
INTERNATIONAL SPACE LAW
International space law originared in the earlv 1960s wvith debate in the
United Nations regarding the development of general pnnciples to govem
humankind's activities in outer space and on the Moon and other celestial
bodies ("outer space"). This process culminated with the adoption of the
Outer Spnce Treny, which will celebrate the 30th anniversary of its entrv into
force on 10 October 1997.
The purpose of this chapter is to determine to what extent international space
law provides for the environmental protection of outer space, the Moon and
other celestial bodies. The thesis of this chapter is two-fold: ( 1 ) the moral
perspective of enlightened anrhropocentrism coloured the development of the
pnnciples of environmental law for application to humankind's activities in
outer space; and (2) the adoption of this human-centred moral perspective
resulted in principles of space law for environmental protection which are
ovenvhelrningly geared toward a utilitanan view of outer space as a natural
"resource", to be developed and sustained for the ultimate benefit of
humankind.
193
The evolution of Artide IX of the Outer Space Treaty' will be examined in some
detail because it is the basic provision in international space law for
environmental protection. Applicable provisions in the Muon Agreoneri? and
other legal instmments relating to space law will also be considered.
A. Environmental Protection in Outer S ~ a c eon
, the Moon and on Other
Celestial Bodies
1. E n l i ~ h t e n e dAnthronocentrism in the Space Science Comrnunitv
The attitude of the scientific community toward outer space during the earlv
vears of space exploration and use is of seminal importance. How scientists
valued outer space had a significant influence on the drafters of outer space
law in general and Article IX of the OutmS p c r Trrrip in particular.
'
Treaty on Principles Governing the Acrivities ofStates in the Exploration and Use of
Outer S'ce. inciuding the Moon and Other Celesrial Bodies, 27 January 1967, Cm. T.S.
1967No. 19, 18 U.S.T. 2410, T.I.A.S. No. 6347,610 U.N.T.S. 205 mereinafter Outer
Space Treaty] (entered into force 10 October 1967).
The first version of the material in Sections A-C of this chapter originally appeared in
H.A. Baker, "Protection of the Outer Space Environment: History and Analysis of Article
IX of the Outer Space Treaty" (1987) 12 Ann. Air & Sp. L. 143.
Agreement Governing the Aciivities of States on the Moon and Other Celestial Bodies,
1 8 December 1979, 1363 U.N.T.S. 3 bereinafter Moon Agreement] (entered into force
11 July 1984).
2 94
Shonly after the 4 Oaober 1957 launching of Sputnik 1, the question of
~
the
environmental harms caused by outer space aaivity was r a i ~ e d .However,
major scientific bodies involved in space activities were concemed with
protecting the outer space environment only insofar as it affected the interests
of their professional endeavours.
The scientific community in the late 1950s regarded outer space "essentiallv as
a pure scientific laboratorf"'" although it also recognized the possibilit~thar
hamiful effects could result from experiments in outer spaces. Consequently,
to protect the unique research opportuniries ushered in bv the space age, the
International Council of Scientific Unions ("ICSU"), a non-governmental
organization composed of representatives of international scientific unions and
national scientific organizations, established the Cornmittee on contamination
bv Extraterrestrial Exploration ("CETEX").6 That cornmittee drew attention to
the fact that "early exploration attempts or ill-considered experiments ... might
1. Szilagyi, "Protection of the Outer Space Environment: Questions of Liability" (1 982)
25 Colloq. L. Outer Sp. 53 at 53.
' C.Q. Christol, The Modern hternutional Law of Outer Space (New York: Pergamon
Press, 1982) at 13 1.
I.A. Vlasic, "The Srowth of Space Law 1957-65: Achievements and Issues" [1965] Air
& Sp. L. 365 at 391-392.
Chistol, supra, note 4 at 132.
195
result in biological, chernical or radiologicai contamination of the lunar or
planetary surfaces such as to complicate or render impossible funher studies of
scientific importance".' CETEX sought to discourage space activities which
could not create or convey meaningful data, while condoning the risks involved
in space exploration as long as they could be justified by the scientific value of
the experiment.' Contamination was to be avoided, in order to rnaintain the
purity of the "newly accessible lab~ratory".~
When CETEX \vas disbanded in 1959, ICSU assigned its work to the
Committee on Space Research ("COSPAR"), a special entity creared bv
ICSU.
Interest and concem about the possible effects of space exyeriments
on "the composition and structure of the Earth's atrnosphere" led COSPAR to
establish a Consultative Group on the Potentiallv Harmful Effects of Space
Experinients C COSPAR-CG") in May 1962." The niandate of the COSPAR-
-
' UN GAOR C.l,
-
18th Sess., 1345th Mtg, para. 2, UN Doc. A/C.l/SR.1345(1963).
Christol, supra, note 4 at 132.
'O
UN GAOR C.1, 18th Sess., 1345th Mtg,para. 2, UN Doc. AK. 1 /SR.1345 (1 963).
" Report to the Executive Couneil ofrhe Committee on Space Research [Iiereinafrer
COSPAR] of the COSPAR Consultative Group on the Potenrially Harmful Effects of
Space Experiments, UN GAOR, 19th Sess., Annex I I I , at 5 , UN Doc. Ai5785 (1964)
[herei nafier COSPAR-CGRepon].
196
CG included examining the possible effeas of back contamination" and "any
proposed experiment or other space activities that might have potentially
undesirable effects on other scientific activities and observation^",'^
determining whether these expenments did have potentially ham~fuleffeas''
and submitting appropriate recommendations to the fiecutive Council of
COS PAR'^.
In its 1964 Report to the Executive C ~ u n c i l ,the
' ~ COSPAR-CG concluded
that some possible pollution-related alterations "could cause interference in
Future experirnents or can be considered harmful in other w a v " and that
further studies were n e c e ~ s a n . ;that
' ~ no interference resulted from the "Project
l 2 See UN COPUOS C. 1, I st Sess.. 4th Mtg, at 7, UN Doc. A/AC. 1 OjlC. 1 ISR.4 (1 962).
Forward contamination takes place through the introduction of undesirable elements into
outer space by some form of human intervention, while back contamination aises as a
result of the introduction of undesirable extraterrestrial matter into the environment of
Earth or undesirable use of such matter by similar human intervention. S. Gorove,
"Pollution and Outer Space: A Legd Analysis and Appraisal" (1972) N.Y.U. J. Int'l L. &
Pol. 53 at 55-56.
l3
UN GAOR C.1.18 Sess., 1345th Mtg, para. 2, UN Doc. A/C.l/SR.l345
(1963).
J.A. Johnson, "Pollution and Contamination in Outer Space" in M. Cohen,ed., Law
and Politics in Space (Montreal: McGill University Press, 1964) 37 at 42.
l4
UN COPUOS C. 1, 1st Sess., 4th Mtg, at 7, UN Doc. AIAC. 105lC.1lSR.4(1 962).
l6
COSPAR-CGReport, supra,note 1 1.
l7
Ibid.,Appendix 1 at 6 and 8.
197
West Ford" orbiting dipoles,18 and that, because contamination of the Moon
and planets raised the question of whether terrestrial organisms would interfere
with any ecological system, especiallv that of Mars, it was important not to
jeopardize "the value of information" that could be gained from studies of
Mad9.
COSPAR adopted a resolution on the basis of this report, which stated that
"harmful contamination" of the upper atmosphere was unlikelv, based on
present and expected rates of experimental rocket launches; that any future
experiments similar to "West Ford" were to be evaluated by the scientific
communitv prior to their initiation to ensure they did not interfere nith other
scientific research; that "al1 practical steps should be taken" to avoid
contamination of Mars until adequate standards of sterilization were
developed and to set temporar-y sterilization levels for space vehicles engaged
in planetary landing, atmosphere penetration and deep lunar drilling, and rhat
Ibid, Appendix II. Project West Ford was a communications experirnent designed to
release 350 million copper filaments in outer space. See in&, text accompanying notes
26-28.
la
l9
Ibid, Appendix I I I at 10-1 1 .
198
States should postpone the launching of planetary entry and Ianding vehicles
until there was a final determination of acceptable sterilitv l e v e l ~ . ? ~
The Scientific and Technical Sub-Cornmittee of COPUOS at its Third Session
in 1964 supponed the C O S P U reso~ution.~'FIowever, the language of the
Sub-Committee staternent considerably weakened the effect of the COSPAR
resolution.''
COPUOS adopted the recommendation of its S u b - C ~ m r n i t t e e ? ~
and, in so doing, felt that the issue of possible interference with space activities
had been settled in a manner satisfactory t o al1 concerned."
Some States,
notably India and the Soviet Union, expressed reser~ations.'~
Resolution Adoptcd by the Erecutive Cozrncil of the Cornmittee on Space Research
20 May 1964, UN GAOR, 19th Sess., Annex II, at 1-7. UN Doc. Al5785 (1964)
[hereinafter COSPAR Resolurion] .
'O
OH
" Report of the Scientijic and Technical Sub-Cornmittee on the Work of ltr Third
Session, UN COPUOS, 1964, at 16, UN Doc. N A C . 10920 (1 964).
" The Sub-Cornmittee watered d o m the resolution by (i) substituting "full
consideration" of the problem of possible interference for ''taking al1 practical steps" to
avoid such interference, given that the former does not necessitate taking any steps; (ii)
enabling Member States proposing the space experiments to decide whether consultation
was appropriate, and (iii) requiring a standard only of "due consideration" in evaluating
whether to abide by any scientific analysis.
UN GAOR, 19th Sess., 5785th Mtg, para. 33, UN Doc. A6785 (1964).
LJNCOPUOS, 3d Sess., 29th Mtg, at 28, UN Doc. N A C . 1OVPV.29 (1 964)
Cprovisional].
UN COPUOS C.2,3d Sess., 29th-37th Mtg, at 80, UN Doc. A/AC. lOj/C.2/SR.29-37
(1964)and UN COPUOS, 3d Sess., 30th Mtg. at 10, UN Doc. N A C .1OYPV.30 (1 964)
Lprovisional]; UN COPUOS, 3d Sess., 26th Mtg, at 14, UN Doc. NAC.105PV.26 (1 964)
"
199
Both COSPAR and CETEX, then, were concemed with the effects of
contamination and interference oniy in so far as these h a m s would be
detrimental to other scientific activities in outer space. The 1964 report of the
COSPAR-CG, the corresponding resolution of COSPAR and the ultimate
adoption by COPUOS of the Scientific and Technical Sub-Cornmittee
statement supported the thrust of this concem.
The response of the COSPAR-CG to "Project West Ford" further reinforces
the view of the scientific community as eqxessed bv COSPAR and CETEX.
"Project Wesr Ford" was a commu~iicationsexperiment designed to release
froiii a satellite 350 niillion long, hair-like copper filaments (dipoles) which
were expected to f o m ~a narrow belt in space around ~ a r t h . " The scientific
coniniunitv. feanng that "Project West Ford" could possiblv have a
detrimental effect on "other scientific ac~ivities",'~
called for a halt to the
[provisional], and UN COPUOS, 3d Sess., 32d Mtg. at 9, UN Doc. A/AC.105PV.32
( 1 964) Lprovisional].
" Johnson, supra, note 14 at 46. One purpose of the experiment was to assess the
potential harms of the dipole belt "on space activities and other branches of science". See
United States S'ce Communicntion Experiment (Project Wesi Ford), UN COPUOS, 2d
Sess., Annex, at 4, UN Doc. N A C . 10511 5 (1 963) [hereinafter Project Wesr Fordj.
'' Project West Ford. ibid at 6.
200
expenment until it could be "established beyond doubt that no damage
[would] be done to astronomical research" ."
The question of possible interference by "Project West Ford" with other
scientific activities was raised at the first meeting of the COSPAR-CG in
March 1963, two months prior to the successful placement of the dipole
payload in ~ r b i t . ' ~Objections to the project turned on the perceived threat to
the safetv of future scientific space research and expenmentation, wïth no
consideration given to the nsk of harm to the outer space environment per se.
This attitude reflects the moral perspective of enlightened anthropocentrisiii,
according to which humankind develops its natural "resources" for pureh
human interests and modifies anv such developrnent onlv to the exTent that
human interests are adversely or likely to be adverselv affecred. In the contest
of space activities, the views expressed by the space science community reflect
this principle of human self-interest: The value of outer space, including the
Moon and other celestial bodies, is limited to its use as a laboratory for the
C.W. Jenks, Space Law (London: Stevens & Sons, 1965) at 35-36. See also, Project
West Ford, ibid.
'g
Project West Ford, ibid. at 7. However, the Iaunch took place before the COSPAR-CG
announced in 1964 that the expenment would not have "significantly harrriful results".
See Jenks, ibid.
9'
20 1
scientific aaivities of humankind. Any proposed space aaivity d l be assessed
as potentially harmful to the outer space environment if, and only if. it
threatens the future use of outer space for scientific purposes in the interests of
humankind.
From the moral perspective of enlightened anthropocentrism, outer space is
"there" to be used as humankind sees fit and apparently has no value in itself.
Anv measures for regulating activities in outer space should ensure that space
research \{dl "yield the fmits we are entitied to expect from i t m .30 The
"temptation of ... lirnitless experimentation" is to be avoided to prevent
jeopardizing the "health and life on our
lan net".^'
While these objectives are
wonhy ones, the idea that protection of the outer space environment is an end
in itself is missing.
The moral perspective of enlightened anthropocentrism (hereafter in this
chapter "the human-centred perspective") permeated a11 United Nations outer
space law negotiations relating to environmental protection. beginning wvith
the 1958 General Assembly ("UNGA") debates on whether to establish a
30
Jenks, ibid at 40.
M. Lachs, The Law of Outer Space: An Experience in Contemporary Law Muking
(The Netherlands: Sijthoff, 1972) at 124.
202
committee on the peaceful uses of outer space and concluding with Artide IX
of the Outer Spnce Treaty, the basic provision of international law for protection
of the outer space environment. As a result, this human-centred perspective
substantially coloured the approach, content and effect of the final products
al1 tliese negotiations.
2 . The Ad Hoc COPUOS
The human-centred perspective was evident during the 1958 UNGA debates
tvhich led to the fom~ationof the Ad Hoc Cornmittee on the Peaceful Uses of
Outer Space ("AdHoc CO PU OS")^', and also influenced the decisions of that
committee concerning the content, extent and rntio~znlrof future scientific
research in outer space. No doubt existed that the "ever more frequent
excursions into outer space which man would make would be firsr and
foremost for scientific pur pose^"^' and that al1 States had the nght to C a m out
these scientific activities3!
States conducting or intending to conduct
experirnents in outer space were to prevent ham~fulcontamination in order to
"safeguard celestial bodies for the sake of science".3s
"
UN GAOR C. 1 , 18th Sess., 982d-995th Mtg, LJN Doc. M C . USR.982-995 (1958).
33
UN GAOR C. 1,18th Sess., 982d Mtg, para. 27-28, UN Doc. N C . USR.982 ( 1 958).
'' UN GAOR C. 1 , 18th Sess., 987th Mtg. para. 12, UN Doc. A/C. 1 /SR.987 (1 9%).
'"
GAOR C. 1 , 18th Sess., 985th Mtg, para. 12, UN Doc. N C . l/SR.985 ( 1 958).
203
T h e Ad Hoc COPUOS was requested to report to the UNGA, inter d i a , on
recommendations for programmes for the peaceful uses of outer s ~ a c e In
. ~ its
~
1959 Report, the Ad Hoc COPUOS cited contamination as an area for which
international CO-operationwas necessary in order to ensure that vanous phases
of space activities could be camed
Because certain space experiments
could lead to biological, chernical or radiological contamination which might
jeopardize further research and endanger possible extratenestnal organisms,
and because space vehides on retuming to Eanh couid contaminate the planet
with extraterrestrial organisms, the Cornmittee stated it was "desirable" to
continue any research in progress ''with a view to arriving a t appropriate
agreements to miniinize the adverse effects of possible c o n t a m i n a t i ~ n " . ~ ~
Contamination of outer space \vas to be avoided pnmarilv to prevent terrestrial
marerial from "interfering with orderlv scientific research". Although funher
studies were to be encouraged to prevent this interference and "other hazards
to health and safetv" which might be created by space exploration, these
j6
Question on the Peacefui Uses of Outer Space, GA Res. 13/ 1348, UN GAOR, 13 th
Sess., para. 1(b), (1 958).
Report of the Ad Hoc Cornmirtee on the Peacefil Uses of OuferSpace, UN GAOR.
1959, at 44-47, UN Doc. A/4 141 ( 1959) [hereinafter 1959 Report].
j7
204
studies were considered non-pnoritv items, i.e., those items which did "not vet
appear ripe for solution".39
However, the 1959 Repon did not mention any other safety and health
hazards which space activities might create, the dangers that contamination
posed to the outer space environment perse or the need for research to assess
the impact of contamination on the integrity of the Eaddspace ecosysteni and
its sub-wstems. The programme for prevention of contamination presented in
the 1959 Repon reflected the human-centred perspective bv seeking "to
protect space against the emergence of conditions that could impede scientific
and technological in~esti~ations"."~
3. The 1963 GeneraI Debates
The 1963 debates in COPUOS and its two sub-cornmittees continue to
illustrate the influence that the human-centred perspective had on drafters of
outer space laiv. The representative of one State believed that the Legal SubCornmittee should work
to prevent the use of outer space for expenments which
endangered human life or which changed the space environment
in such a way that the possibility of obtaining more important
39
lbid. at 69 and 61.
'O
Christol, supra, note 4 at 132.
scientific information was jeopardized. On rare occasions, a major
experiment of such a type might be so important as to be
desirable in the interests of science, but it should first be
discussed and ~ l e a r e d . ~ ~
One State representative in the Scientific and Technical Sub-Cornmittee
claimed that any harm to future space experiments resulting from high altitude
nuclear explosions "would be very insignificant in cornparison with the value of
the information gained" and that most experiments which had resulted in
contamination of the upper atmosphere "had been of sufficient scientific
interest to be justified"."'
More significantlv, a recommendation of the Scientific and Technical SubCornmittee during its Second S e ~ s i o n ,which
"~
was subsequently approved bv
COPUOS, recognized the importance of the problem of preventing harmful
interference, but limited the scope of this prevention to experiments which
"may affect present or future scientific activities". Onlv in these circumstances
were assurances sought that the experiments "would not adverselv change the
UN COPUOS C.2,2d Sess.,22d Mtg,at 7, IM Doc. N A C . 10YC.2lSR.22(1 963).
'' UN COPUOS C. 1,2d Sess., 12th-20th Mtg, at 91-92. UN Doc. NAC. 1 05IC. 1 /SR. 1220 (1963).
of ihe Scieniific and Technical Sub-Cornmittee on the Work of lis Second
Session, UN COPUOS, 1963, at 9, UN Doc. N A C . IOSI14 (1 963).
'-'
Report
206
space environment or adverse.
affect experiments in ~pace".~"
Therefore. the
human-centred perspective govemed in COPUOS when deciding the criteria
for avoiding potentiaily harmful interference. States supporting the SubCornmittee recomrnendation, "based on a genuine fear as to the safetv of outer
be forced to accept this limitation. As a result, a pivota1
~ p a c e " , ~would
'
recomrnendation which could have had an infiuential effect on the prevention
of potentially ham~fulinrerference \vas substantially deflated.'16
Report of Cornmittee on the Peaceful Uses of Oufer Space,
Doc. A/5549( 1 963).
"
GAOR, 1963, at 8, UN
UN COPUOS, 2d Sess., 21st Mtg, at 3, UN Doc. A/AC.105/PV.21 (1963)
[provisional].
4S
UN COPUOS, 3d Sess., 22d Mtg, at 3 and 10, UN Doc. N A C . 10WV.22 (1 963)
[provisional].
I6
207
4. P a r a ~ r a ~6hof the 1963 UN Declaration on Outer S ~ a c e
The 1963 U N Decl~rntiod7on outer mace is a Drecursor of the 1967 Outer
Trenty . Paragraph 6 of the 1963 UN Declnrntio~iStates:
In the exploration and use of outer space, States shall be guided
bv the px-inciple of CO-operarionand mutual assistance and shall
conduct dl their activities in outer space wirh due regard for the
corresponding interests of other States. If a State has reason to
believe that an outer space activity or expenment planned by it or
its nationals would cause potentially harmful interference with
activities of other States in the peaceful exploration and use of
outer space. it shall undertake appropriate international
consultations before proceeding with any such activity or
experiment. A State which has reason to believe that an outer
space activitv or experiment planned bv another State would
cause potentially harmful interference with activities in the
peaceful exploration and use of outer space may request
consultation conceming the activitv or experiment.
Paragraph 6 was the first attempt to enunciate a principle calling for
and took into
"international consultations in the case of dangerous acti~ities""~
account the recommendations of the 1962 Report of the Scientific and
Technical Sub-Committee, which invited the attention of COPUOS to the
Declaration ofLegaz Principles Governing the Ac~ivitiesof States in the Exploration
and Use of Outer Space, G A Res. 18/1962, UN GAOR, 18th Sess., Item No. 28, CTN Doc.
Af5656 (1 963) Fereinafter 1963 UN Declaration]. The 1963 UN Declaration has been
accepted by the vast majonty of States as evidence of customary international law. See
UN COPUOS C.2, 5th Sess., 57th Mtg, esp. at 5 and 10, UN Doc. NAC. 105/C.2/SR.57
( 1 966). As such, the principles it espouses, regardless of their generality, are binding on
al1 States not parties to the OuferSpace Treaîy.
"
UN GAOR C. 1, 18th Sess., 1342 Mtg. para. 14, UN Doc. A/C.l/SR. 1342 ( 1 963).
208
"urgency and importance" of preventing potentially harmful interference with
the peaceful uses of outer ~ p a c e ' ~According
.
to this principle, freedom of
space experimentation would be limited only to the extent that a mrrnber
State would fail to respect the interests of o t h e r ~ . ' ~
Paragraph 6 was viewed as a statement of principle which would guard against
anv outer space activities that could cause potentially harmful interference
nith space activities of other
tat tes? Although Paragraph 6 did not include a
procedure for consultation, COPUOS could use this provision as "a starting
point for working out the necessan7preventative and precautionan. measures
and for finding means for their effective international application"."
Objections to Paragaph 6 of the UN Declaration were raised on two grounds:
the lack of a specific obligation to consult if proposed ehyeriments could
rnodib the natural environment of Eanh in a manner which would threaten
Additional Reporf of the Cornmitfeeon the Peaceful Uses of Oufer Space, UN GAOR.
18th Sess., Annex, at 3, UN Doc. N5549lAdd.l (1963) [hereinafier COPUOS Additional
Report]. See also, UN GAOR C. 1 , 18th Sess., 1345th Mtg. para. 9 , UN Doc.
N C .]/SR. 1345 (1963).
49
'O
UN GAOR C.1 , 18th Sess., 1343d Mtg, para. 14, U N Doc. N C . 1/SR. 1343 ( 1963).
COPUOS Additional Report, supra, note 49 at 7.
" UN GAOR C. 1, 18th Sess., 1343d Mtg, para. 17, UN Doc. A/C. 1/SR.1343 (1 963).
209
the human race or the interests of other States,j3 and the failure to provide for
an international authority with power to act if consultations faileds4.
However, a more important objection was not recorded: Whether to undextake
international consultation was a subjective decision based on the reasonable
belief of the State proposing the aaivity, thereby leaving it to that State to
determine whether its activity would cause harmfûl interference.
The principle of CO-operationwas upheld by al1 during negotiations for the
1963 UN De~laration.'~The importance of a CO-operativeeffort for
preventing space activities which might impede or make difficult the space
activities of other States was stressed strongly by the Soviet nio on." The
"due regard" principle limits the absolute freedom of use and exploration of
outer space because due regard for the interests of other States requires States
53
COPUOS Additional Report, supra, note 49 at 10.
54
UN GAOR C. 1 , 18th Sess., 1344th Mtg, para. 24, LN Doc. A/C.I/ SR 1344 (1 963).
55
UN COPUOS C.2,2d Sess., 22d Mtg, at 4, UN Doc. A/AC. 105/C.2/SR.22 (1963).
" UN GAOR C. 1, 16th Sess., 1210th Mtg, para. 25, UN Doc. A/C.I/SR.12 10 (1 961);
UN COPUOS, 1st Sess., 5th Mtg, at 1 1 and 26, UN Doc. MAC. 105PV.5 (1 962)
[provisional], and UN COPUOS, 1st Sess., 10th Mtg, at 38, UN Doc. A/AC. 1OSPV.1O
( 1962) Iprovisional].
210
to consider the effeas of their space activities on the world community of
Sta te^.'^
Paragraph 6 establishes a link between the general pnnciples of CO-operation
and due regard in sentence 1 and the two more specific provisions conceming
potentially ham~fulactivities in sentences 2 and 3
This connection limits
both the need for CO-operationand mutual assistance and the interests for
which States should have due regard, to those situations in wvhich consultation
is necessarv, Le., in cases where States have a reasonable belief that space
activities or experiments could harmfully interfere with other space activities.'"
In sentence 2, a State carrving out a space a c t i ~ l t yhas an obligation to consult
prior to undertaking that activity if that State has a "reason to believe" that
the proposed activ-irv could cause potentiallv harmful interference with other
space activities. In sentence 3, States other than the State caming out the
activitv have a right to request consultation if they have "reason to believe"
57 Several States accepted the due regard principle on this basis. See UN COPUOS C.2,
2d Sess., 21 st Mtg, at 6, UN Doc. A/AC. 105/C.2/SR.21 ( 1 963) and UN COPUOS C.2.2d
Sess., 22 Mtg, at 7 and 12, LR.I Doc. N A C . 105/C.2/SR.22 ( 1 963).
"
Jenks, supra, note 28 at 40.
Regarding the nanow definition of corresponding interests, see infia. text
accompanying notes 71 -74.
s9
that the space aaivity under consideration could cause harmful interference
with other space activities.
Given that sentences 2 and 3 refer to "space activities" as well as
"expenments", commercial and govemment activities, as well as scientific ones.
are subject to consultation. Therefore, States may avoid consultation under
the "reasonable belief' mle for a greater number of activities. In practical
t e m s , the ability to control or prevent possible harniful interference has been
diminished.
More significantly, the scope of application of the human-centred perspective
is likewise expanded: Any proposed space activitv will be assessed as
potentiallv harmful to the outer space environment if, and onlv if, it threatens
the future use of that environment for scientific, commercial or govemment
activities. I t may seem at first glance that increasing the scope of activities in
Paragraph 6 would reduce the risk of environmental harm. However, the fact
that the rnajority of activities capable of causing environmental h a m are
unlikely to threaten the h t u r e use of outer space for scientific, commercial or
govemment activities, makes the possibility of such a reduction remote.
5. Article 10 of the US Draft Treatv and
Article VTII of the USSR Draft Treatv
When US President Lyndon B. Johnson stated on 7 May 1966 that a treaty on
general principles of space law was necessary, one principle which he proposed
be included was: "Studies should be made to avoid harmful c o n t a r n i n a t i ~ n " . ~ ~
Several months following this statement, the United States and the Soviet
Union submitted to COPUOS draft proposals for general principles to govern
space law.
Article 10 of the US Draft Treaty provided:
States shall pursue studies of and, as appropriate, take steps to
avoid harmful contamination af celestial bodies and adverse
changes in the environment of the Eanh resulting from the return
of extraterrestrial matter?'
The first legislative provision submitted to COPUOS for avoidance of
contamination, Article 10 followed the suggestion of President Johnson. which
likelv resulted from the acceptance of the COSPAR resolution bv COPUOS in
P.G.Dembling, "Treaty on Pnnciples Goveming the Activities of States in the
Exploration and Use of Outer Space including the Moon and Other Celestial Bodies" in
N. Jasentulyana & R.S.K. Lee, eds, Manual on Spoce Law, vol. 1 (Dobbs Ferry, NY:
Oceana Publications, 1979) 1 at 6 .
60
Dra) Treaiy Concerning the Exploration of the Moon and Other Celestial Bodies, UN
COPUOS C.2, UN Doc. N A C . 1 OYC.2/L. 12 (1 966) [hereinafter US Dra$ Treag].
6'
213
1964.62The US Draft Treaty contained no specific reference to Paragraph 6 of
the 1963 UN Declaration.
Article VI11 of the USSR Draft Treaty stated:
In the exploration and use of outer space, States Parties to the
Treaty shall be guided by the principle of CO-operationand
mutual assistance and shall conduct al1 their activities in outer
space, including activities on celestial bodies, with due regard for
the corresponding interests of other States. States Parties to the
Treatv shall conduct research on celestial bodies in such a manner
as to avoid harmful contamination. If a State Party to the Treaty
has reason to believe that an outer space activity or e-xperiment
planned by it or its nationals would cause potentially harmful
interference with activities of other States Parties in the peaceful
exploration and use of outer space, induding activities on celestial
bodies, it shall undertake appropriate international consultations
before proceeding with any such activity or experirnent. A State
Partv to the Treatv which has reason to believe that an outer
space activitv or experiment planned by another State Partv
would cause potentially harmful interference wvith activities in the
peaceful exploration and use of outer space, including activities
on celestial bodies, may request consultation conceming the
activity or e x p e r i n ~ e n t . ~ ~
This provision broadened the scope of Paragraph 6 of the 1963 UN
Declaration by including a specific reference to activities on celestial bodies,
'' See supra, text accompanying notes 20-25.
Drap T r e c l ~on Principles Governing Activities of States in the Explorarion and Cse
ofouter Space, the Moon and Other Celesfial Bodies, UN COPUOS C.2. UN Doc.
N A C . 105/C.2L.13 (1 966) [hereinafier USSR Drafr Treaty].
63
214
thereby ensuring that activities in outer space induded activities on celesrial
bodies. The introduction of the pnnciple of avoidance of contamination in
sentence 2 parallelled that of Article 10 in the US Draft Treaty and can also be
attnbuted to the acceptance by COPUOS of the COSPAR resolution.
A cornparison of sentence 2 of USSR Anicle VI11 with US Anicle 10 is
revealing. The scope of activities is broader in Article 10. "Studies" in US
Article 10 includes "research" in sentence 2 of USSR Article VI11 as well as
commercial and government activities. The use of "studies" is significant
because scientific, commercial and govemment activities are al1 bound bv the
contamination avoidance mle. Furthemore, a parallel is achieved with the
"space activitv" and "experiment" categories for which consultation is deeiiied
necessarv.
The type and scope of contamination to be avoided differs. Sentence 2 of
USSR Artide VI11 is arnbiguous in the type of contamination it prohibits.
Inclusion of fonvard contamination is almost certain, while back
contamination may be inferred because "to avoid hannful contamination" has
no indirect object. While US Article 10 is more specific, providing for both
fonvard and back contamination, the duty there is less strict. Onlv "steps to
215
avoid" contamination need be taken, whereas it is mandatory that
contamination be avoided in sentence 2 of USSR Artide VIII. "Steps to
avoid" could mean that contamination resulting from an activity wmld be
permissible, notwithstanding the steps taken to avoid the contamination,
therebv nullihring any recommended contamination procedure. However,
regardless of whether a strict or narrow interpretation is applied, it is the
human-centred perspective which will ultimately determine what tvpes of
contamination d l be avoided
-- those which could hami space actixlties.
Sentence 2 of USSR Article VI11 did not contain specific references to eirher
the Moon or outer space. Therefore, this provision may be interpreted to
mean that harmful contamination is to be avoided only on celestial bodies
other than the Moon. Further, sentence 2 could mean that when caming out
p
p
p
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p
p
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research on the Moon and in outer space, States need not avoid hamiful
contamination as long as the CO-operationand due regard requirements of
sentence 1 are met.
In Article 10 of the US draft, the contamination to be avoided varies n i t h the
location: "Harmful contamination" is to be avoided on celestial bodies, while
"adverse changes" are to be avoided on Earth. The use of a different
216
expression for each location raises senous concems. Because adverse changes,
such as, e.g., transformation of the geography of a celestial bodv by an
accidental explosion, may not necessanly constitute harmfd contamination.
such changes could be permitted on celestial bodies. Similarlv, importation to
Earth of an extraterrestrial organism, which results in "minor" harmful
contamination (e.g., the extinction of a bird species), would be pem~issibleas
long as major adverse changes do not occur. In addition, as with sentence 2 of
USSR Article VIII, the lack of specific reference to the Moon and outer space
implies that harmful interference need not be avoided there.
Both proposais are enlightening for what they do not sav. Neither considers a
standard for permissible interference, mentions the avoidance of specific
activities, nor rnakes it mandatorv to avoid activities which could harmfully
contaminate the outer space environment perse. Furthern~ore,no prohibitions
are invoked?
These omissions illustrate the application of the human-centred perspective to
treaty drafting. Because COPUOS had approved the COSPAR resoiution, the
US and USSR drafiers were faced with the political necessity of incorporating
Y.M. Kolossov, "Legal Aspects of Outer Space Environmental Protection'' (1 980) 23
Colloq. L. Outer Sp. 103 at 105.
217
into their respective texts a rule for avoiding harmful contamination. The
results of their efforts ensure that any seaor of the outer space environment
will be preserved for hiture commercial, govemment or scientific aaivity. For
example, consider the situation where contamination from a commercial
activitv irreversibly transforms the ecological balance of a celesrial body. If
that celestial body were unfit for future commercial, govemment or scientific
activitv, the mle would be breached. In no other case would a legal sanction
apply. This change would not be considered "harmful contaminationt' if the
three uses mentioned above were still possible; and even if the contamination
were considered harmful, it could be a r p e d that a11 boimfidr efforts taken to
avoid contamination failed. Anv attempt to protect the environment of that
celestial body would be either incidental or temporary, based on the need for
future use.
6. Article IX of the Outer Space Treatv
The key Article IX of the Outer Spnce Treap provides:
In the exploration and use of outer space, including the Moon
and other celesrial bodies, States Parties to the Treaty shall be
guided by the principle of CO-operationand mutual assistance and
shall conduct al1 their activities in outer space, including the
Moon and other celestial bodies, with due regard to the
corresponding interests of al1 other States Parties to the Treaty.
States Parties to the Treaty shall pursue studies of outer space,
induding the Moon and other celestial bodies, and conduct
exploration of them so as to avoid their harmful contamination
and also adverse changes in the environment of the Earth
resulting from the introduction of extratenestnal matter and,
where necessary, shall adopt appropriate measures for this
purpose. If a State Party to the Treaty has reason to believe thar
an activity or experiment planned by it or its nationals in outer
space, induding the Moon and other celestial bodies, would cause
potentially harmful interference with activities of other States
Parties in the peacefd exploration and use of outer space,
induding the Moon and other celestial bodies, it shall undertake
appropriate international consultations before proceeding with
anv such activity or experiment. A State Party to the Treatv
which has reason to believe that an activity or experirnent
planned by another State Party in outer space, including the
Moon and other celestial bodies, would cause potentiallv harnful
interference with activities in the peaceful use and exploration of
outer space, induding the Moon and other celestial bodies, mav
request consultation conceming the activity or e?cperiment.6s
a
The human-centred perspective goes to the root of Article IX -- harmful
activities, i.e., those space activities which contaminate and those which
interfere with other space activities. Several commentators, who have pointed
out the difficulties of defining "harmful", "contamination" and
"interferen~e",~~
have assumed that scientists will ultimately be the ones to
65
Ouler Space Treav, supra, note 1 .
See e-g., Gorove, supra, note 12 at 62-63; G.C.M.Reijnen, "Some Aspects of
Environmental Problems in Space Law" (1 977) 26 Zeitschrift Luft Weltraurnrecht 23 at
23; Kolossov, supra, note 64 at 105, and P.G.Dembling and S.S. Kalsi. "PolIution of
Man's Last Frontier: Adequacy of Present Space Environmental Law in Preserving the
Resource of Outer Space" ( 1 973) 20 Netherlands Int'l L.J. 125 at 140-4 1 .
66
2 19
define these t e n n ~ . ~However,
'
the human-centred perspective provides the
test for "harm". a test which has nothing whatsoever to do with science. An
aaivity will be harmful ordy if it interferes with the future use of outer space,
the Moon and other celestial bodes for space activities. This test is based on
the short-term goals of hurnankind, not the laws of nature as interpreted by
the scientist. Therefore, hannful interference and hannful contamination have
no direct connection 111th environmental concems. While Article IX is an
attempt to regulate the unfettered freedom to use and explore outer ~ ~ a c e , ~ ~
any matenal environmental protection found in Article IX is onlv a fortuitous
by-product.
(a) Sentence 1 of Article IX
Sentence I of Article IX sentes as an example of the practical application of the
principle of international CO-operationand mutual assistance, which was
considered to be the keystone of the Outrr Spncr T n ~ t - y Frorn
. ~ ~ this basic
See e.g., M. Miklody. "Some Remarks on the Status of Celestial Bodies and Protection
of the Environment" (1982) 25 Colloq. L. Outer Sp. 13 at 13 and Dembling and Kalsi?
ibid at 140.
67
68
Gorove, supra. note 12 at 60.
pnnciple could be derived the duty of States to prevent contamination and to
CO-operatein scientific re~earch.'~
The principle that due regard should be given to the corresponding interests of
States \vas considered to be "one of the most important points" in space law."
However, these corresponding interests are severely limited in Article IX: First,
unlike Paragraph 6 of the 1963 UN Declnrntion, which applies to al1 States,
Article IX of the Outrr Spnce Treaty applies only to States parties to that
treaty."
Second, "corresponding interests" could be construed as being
restricted to potentially harmful interference with space acrivities. hamful
contamination to celestial bodies and adverse changes to the environment of
Eanh from back contamination caused by extraterrestrial organis~ns.'~
The
representative of France argued that concern for corresponding interests should
also account for certain effects on the territories of States in the broadest
sense, including territorial waters, airspace and land-based installations, and
UN COPUOS C.2,Sth Sess., 60th Mtg, at 2-3. UN Doc. N A C . 105/C.2!SR.60 (1 966).
W COPUOS C.2,Sth Sess., 68th Mtg, at 1O. UN Doc. NAC. 105/C.2/SR.68 (1 966)
bereinafter Article LY Debate].
71
The issue of the nghts and obligations of non-party States under the Outer Space
Treaty is unresolved. See UN COPUOS C.2. 5th Sess., 71 st Mtg. at 18-19, UN Doc.
N A C . 105/C.2/SR.7 1 and Add. 1 (1 966).
72
COPUOS, 6th Sess., 47th Mtg, at 27, UN Doc. N A C . 105PV.47 (1967)
Cprovisional].
73
22 1
should specifically indude possible harmful effeas resulting from direct
broadcast satellites, weather modification, "certain uses of high altitude
photography" and congestion in outer space resulting from overcrowding of
satellites, radio frequencies and spent satellite^.'^ Third, the test for
"harmful", as interpreted from the human-centred perspective, further delimits
the "corresponding inrerests" by not regulating those activities which, while
not posing a risk to future space activities, mav harm the outer space
environment.
ib) Sentence 2 of Article IX
The contamination provision in sentence 2 of Article IX refers to fonvard and
back c o n t a n ~ i n a t i o nthereby
,~~
combining US Article 10 with sentence 2 of
USSR Article VIII. Fonvard contamination is to be avoided in outer space and
on the iMoon as well as celestial b ~ d i e s . ' The
~ provision in US Article 10 for
"taking steps to avoid harmful contamination", where appropnate, \vas
modified and incorporated into sentence 2 of Article IX to allow for the
" See also, Christol, supra, note 4 at 139, citing J. Smicki, "International Consultation
and Space Treaties" (1 975) 17 Colloq. L. Outer Sp. 159.
Article IX Debate, supra, note 71 at 3 and UN COPUOS C.2, 5th Sess., 63d Mtg, at 23, UN Doc. A/AC. 1 Oj/C.2/SR.63 (1 966).
75
76
Article IX Debate, ibid.
adoption of appropnate measures, "where necessary", to avoid both harmful
contamination in the entire outer space environment and adverse changes to
the environment of Eanh caused by badc contamination."
A bid in the Legal Sub-Cornmittee of COPUOS by the Japanese delegation to
have sentence 2 of Article IX amended to indude more detailed regdation of
contaminationia was rejected. 1t was the Legai Sub-Cornmittee's position that
because the issue of fonvard and back contamination was at an early stage of
development. and given that the COSPAR-CG \vas consulting on the matter,
care had to be taken not to establish "too rigid procedures" which might
hinder future re~earch.'~The Japanese delegation, however, Iras sot convinced
that its proposal was covered by reading the due regard principle together with
the proposed contamination provision, as "some delegations" had s~ggested.~'
Rather, the Japanese delegation "suspected that the space powers had not
77 For a plea to expand the scope for avoidance of contamination, see the statements of
the representative of India in UN COPUOS C.2, 5th Sess., 71st Mtg, at 9, UN Doc.
NAC. 105/C.2/SR.7 1 and Add. 1 ( 1 966) and UN COPUOS C.2, 5th Sess.. 7 1 st Mtg, at
23-26, UN Doc. N A C . 105/C.2/PR.71 (1966) [provisional].
Article IX Debate, supra, note 71 at 6 and UN COPUOS C.2, 5th Sess.. 58th Mtg. at 7,
UN Doc. N A C . 105K.ZlSR.58 (1 966).
"
79
Article IX Debate, ibid. at 7.
UN COPUOS C.2,Sth. Sess.. 71st Mtp, at 38-40, UN Doc. A/AC.lOj/C.2/PR.71
( 1 966) [provisional].
O'
223
accepted its amendment mainly because they feared that it rnight tie their
hands in future activities on celestial bodies".''
The category of activities for which harmfui contamination was to be avoided
\vas broadened to include exploration as well as research, combining "pursue
studies" from US Article 10 and "conduct research" from USSR Article WII.
As indicated above,'* "studies" could include commercial, govemment and
scientific activities. Indeed, Article IX of the Outrr Spcr Trenty refers to
"pursuing studies" and "conducring exploration", totally eliminating the more
restrictive concept of "research" and, in so doing, extends the avoidance of
harmful contamination to commercial and govemment activities in addition to
scientific activities.
Sentence 2 offers no direct protection for the outer space environment p u sr.
States undertaking scientific, commercial or govemment space activities are
obliged to avoid hamful fonvard and back contamination and to adopt
measures, where appropriate, for avoiding such contamination. However, the
test for "harmful" is based on the human-centred perspective and its utilitanan
''
üN COPUOS C.2, 5th Sess., 71st Mtg, at 13, UN Doc. A/AC.IOYC.2/SR.71 and
Add. l (1 966).
" See supra at 2 14.
interest in outer space, even though the safeguards contained in the principle
of avoidance of harmful contamination were considered to include
maintenance of a contamination-free outer space environment as a legitimare
interesta3. In addition, it was never intended that the protection offered bv
sentence 2 would apply to the environments of outer space, the Moon and
other celestial bodies per se. Although i t was suggested that possible
environmental hamis should be given a priority ranking, this listing was onlv
ro avoid interference of one activity with a n ~ t h e r ; 'although
~
the freedom of
States to use and explore outer space \vas limited to non-threatening activities,
threatening activities included onlv those which impinge on State
~overeigntv;~'
and although it was argued that State parties should exercise
"niaximum are"'^ to presenre the resources and milieu of celestial bodiesVs'
this was solelv to funher scientific usesgg. Moreover, activities are not
prohibited. but onlv to be avoided, therebv allowing for harmful
-
83
-
-
-
UN GAOR C.1, 2 1 st Sess., 1493d Mtg, at 26, UN Doc. A/C.l/SR. 1493 (1966).
" UN COPUOS C.2, 5th Sess., 7th Mtg. at 26, UN Doc. A/AC.105/C.2/PR.7
(1966)
[provisional].
86 L N COPUOS C.2,Sth Sess., 71st Mtg, at 13, UN Doc. A/AC.lOS/C.2/SR.71 and
Add. 1 (1 966).
UN COPUOS C.2, 5th Sess., 58th Mtg, at 7, UN Doc. AlAc. 105/C.2/SR.58 (1966)
and Article IX Debate, supra, note 71 at 6.
Article IX Debate, ibid.
contamination bv default. Avoidance may be the intent; it need not be the
result. Therefore, widening the scope of activities subject to the avoidance of
harmful contamination o d v
.' sewed to legitimize contaminating activities.
The duty of States to impose limits on space activities which mav cause
harmful contamination is minimal and ambiguous. Regulations must be
appropriate -- "where necessary". Although the test for necessitv is not
excplicitlv subjective, the negotiating historv of Article IX and its results belie
an objective test, especiallv when the "reasonable belief' test for consultation
is taken into account. in any case, the human-centred perspective will govern
what nieasures are appropriate: whether the test is subjective or objective
becomes a niatter of the quantitv of contamination, not the qualitv of the
environment.
{ c ) Sentences 3 and 4 of Article IX
Sentences 3 and 4 apply to scientific, commercial or govemment space
activities which may cause potentially harmful interference with space
activities of other States. As a consequence of the human-centred perspective,
harmful interference anses only where the future use of outer space, the Moon
226
and other celestial bodies for space activities will be affected. Once again,
environmental protection is incidental.
The consultation pnnciple incorporated into sentences 3 and 4 of Article IX
provides a forum for the scientific analysis of activities which could cause
potentiallv harmful interference. This provision differs from USSR Article
VI11 only to the extent that the scope of exploration and use is widened to
include the Moon as well as outer space and other celestial bodies.
The consultation pro~lsionin both sentences l a s intended to senre a double
function. Not onlv would appropriate consultations be required if activities or
experiments of one State might interfere 111th activities of other States, but
everv State panv undertaking such an activitv "would be obliged to transmit
to other parties information on these a c t i ~ i t i e s " . ~ ~
For a sentence 3 consultation to arise, the State undenaking the consultation
must have a reasonable belief that its space activity would prevent the future
use of outer space for commercial, govemment or scientific activities. If such a
consultation situation arose, a State undertaking consulration would be
g9
UN COPUOS C.2,5th Sess., 68th Mtg. at 7,UN Doc. N A C . 105/C.2/SR.68 ( 1 966).
obliged to provide information as to the nature of the activity or e.xperiment
for which consultation was sought. However, there is no requirement that the
information be either complete or delivered in time for sufficient study prior to
consultation.
In addition, no procedures for consultation or settlement of disputes arising
therefrom are enumerated in sentence 3. Because Article III of the Outrr Spacr.
Treny provides that space activities are to be camed out in accordance 1~1th
international la^,^' States could applv the standard dispute resoiurion
procedures of international law as provided for in Chapter VI of the W h r
C l m ~ r r However,
~~.
to invoke established Earth-bound procedures for
resolution of outer space disputes could distort the issue to fit the procedure.
Different characteristics of outer space and terrestrial environments demand
different approaches .97
Outer Space Treaty, supra, note 1 , art. 3, States in part: "States Parties to the Treaty
shall cany on activities in the exploration and use of outer space, including the moon and
other celestial bodies, in accordance with international law, inciuding the Charter of the
United Nations ..." .
90
United Nations Charter, 26 June 1 945, 1 6 U.S.T. 1 1 34 (entered into force 24 October
1945). Chapter VI is titled, "Pacific Settlement of Disputes".
9'
''H. Desaussure, "Maritime and Space Law: Cornparison and Contrasts (An Oceanic
View of Space Transport)" (198 1) 9 J. Sp. L. 93 at 103.
228
In sentence 4, for a State to accede to a request for consultation, the
requesting State must have a reasonable belief and must demonstrate that the
space aaivity of the undertaking State could cause potentially hamful
interference with the space aaivities of other States; Le., the activity would
jeopardize the future use of outer space for commercial, govemment or
scientific activities. Where a State acceded to sudi a request, the requesting
State would have a right to receive from the acceding State anv additional
information as to the nature of the activity for which consultation was sought.
As with a sentence 3 consultation, this information need be neither complete
nor timelv. Also, the applicable consultation procedures are not indicated.
Sentence 4 suffers from an additional weakness in that it provides no
obligation for the State undenaking the activitv to accede to the request for
it has been argued that because the Outer Spcr
c o n ~ u l t a t i o n .However,
~~
Trtxg contains obligations, "it would therefore be compulsory to cornply with
requests for which i t provided".94 On this basis, accession to a request for
consultation would be compuIsory if the requesting State could demonstrate
that potentially harmful interference would result from the proposed acti-vity.
Article IX Debate, supra, note 7 1 at 9.
94
Ibid at 9.
As with the information provision, the Iack of a time requirement for initiating
consultations following such a request effectively negates its c o m p u l s o ~force.
States wishing to protect the outer space environment perse \vil1 rely on the
sentence 4 provision, but only if thev are parties to the Outer Space Treaty.
Non-party States have no standing under the Outer S p c e Tmty, although thev
mav be able to invoke Paragraph 6 of the 1963 UN Drclnrntioil, given that its
principles have been accepted by almost al1 States as indicative of international
customary lawgs Although the reasonable belief test seenis to be to the
advantage of a requesting State in an environmental protection contex, the
human-centred perspective initigates against the success of a request to
consult: The requesting State must convince the undenaking State on the
basis of the hunian-centred test for "harn~"that its space activitv could cause
potentiallv ham~fulinterference. Because environmental protection stands
outside the utilitarian nature of the human-centred perspective, success in
preventing such an activity on purely ecological grounds is out of the question.
Finally, States carwing out space activities which result in harmful
contamination will only be under a duty to consult if those activities also cause
It is reasonable to assume, however, that any State in a position to undertake space
activities will become a party to the OuferSpace Treary prior to the time when its space
activities are operational.
95
230
harmful interference with other space activities. As with other instances of
potentiallv hamful interference, the human-centred perspective narrows the
application of this duty to consult to those instances in which future space
activities would be prevented.
7. ArticIe N. ara. 4 of the Outer Svace Treatv
Article IV, para. 1 of the Outer S p c e T ' r e n t ~pro~ldes:
~~
States Parties to the Treaty undenake not to place in orbit around the
Eanh any objects canving nuclear weapons or other weapons of mass
destruction. install such weapons on celestial bodies. or station such
weapons in outer space in anv manner.
Article IV, para. 1 contributes to protection of the outer space environment b\*
means of an undertaking arnong States Parties that thev ni11 not to place
nuclear weapons or other weapons of mass destruction in orbit around Earth or
on celestial b ~ d i e s . ~ '
"
Supra, note 1.
97
See also, infra, Section B.3 and Section C.1.
B. Environmental Protection of the Moon and Other Celestial Bodies
1 . Article 7 of the Muon Amernent
Article 7 of the Moon gre et ment^^ enhances the environmental obligations
found in the Outer Spnce Trenty by enunciating specific standards of conduct to
be followed on the Moon and other celestial bodies.99 Article 7, para. 1 States:
In exploring and using the rnoon, States Parties shail take
measures t o prevent the disnipion of the existing balance of its
environment, whether by introducing adverse changes in that
environment, bv its h a m f u l contamination through the
introduction of extra-environmentai matter or othenvise. States
Parties shall also take measures to avoid ham~fullvaffecting the
environment of Earth through the introduction of extraterrestrial
matter or othenvise.
98
Szipra, note 2.
P.M. Stems and L.I. Tennen, ''Principles of Environmental Protection in the Corpzis
Jriris Spatialis", at 13-14. Paper prepared for presentation at 30th Congress. International
Institute of Space Law, Brighton, October 1987.
99
The progressive development in the Moon Agreement of specific provisions for
environmental protection, based on the foundation established by the more general
principles of the Ouler Space Treaty, is consistent with the approach adopted by the
United Nations for the orderly development of space law. According to this procedure.
the broad guidelines of the Outer Space Treaw evolve when necessary in order to account
for scientific and technological change or to resolve specific problems. See E. Galloway,
"Agreement Governing Activities of States on the Moon and Other Celestial Bodies"
(1 980) 5 Ann. Air & Sp. L. 48 1 at 48 1-83. The Moon Agreement applies this procedure.
with the enurneration of principles for environmental protection on the Moon and other
celestial bodies being only one of several legal issues it addresses. See N.M. Matte,
"Legal Principles Relating to the Moon" in Jasentulyana & Lee, supra, note 60.253 at
253-55.
This paragraph overcomes many of the deficiencies found in sentence 2 of
Article M of the Outer Space TreatyfoOby supplementing "practically al1
Iacuna's [sic] and controversies" found therein Io'.
The requirement to "prevent dismption" is more comprehensiveLe than the
dutv in sentence 2 of Article IX to avoid harmful contamination in outer space,
on the Moon and on other celestial bodies, and adverse changes to Earth,
because both "harn~fulcontamination" and "adverse changes" rnust be avoided
on the Moon. Further, the exact nature of the dismption assumes less
i m P ~ ~ a n c e 1bccause
03
"or othenvise" is intended to cover al1 conduct which
could disrupt the existing balan~e'~'.
'O0
N.Jasentulyana, "Environmental Impact of Space Activities: An international Law
Perspectiveo' ( 1984) 27 Colloq. L. Outer Sp. 390 at 394 and H. Qizhi. "Towards
International Control of Environmental Hazards of Space Activities", at 1-2. Paper
prepared for presentation at 30th Congress, International Institute of Space Law,
Brighton, October 1987.
H.L. van Traa-Engelman, "Environmental Hazards fiom Space Activities: Status and
Prospects of Environmental Control'' (1982) 25 Colloq. L. Outer Sp. 55 at 59.
'O2
Stems and Tennen, supra. note 99 at 13.
'O3
See van Traa-Engelman, supro, note 101 at 59.
lm
See Qizhi, supra. note 100 at 2.
233
By stating that the "existing balance" of the Moon's environment is not to be
dismpted, Article 7 moves awav from the utilitanan demands of the test for
"harmful", as interpreted from the human-centred perspective, and invites a
scientific definition of "dismption", based on the general principles of ecologv.
Although no specific standards are enumerated for determining when an
activity contravenes the general obligation to prevent dismption of this
existing balance,'or the objective nature of scientific definition will increase the
Iikelihood of agreement on this determination.
Article 7, para. 2 of the Mouli Agreemort States:
States Parties shall infornî the Secretarv-General of the United
Nations of the measures being a d o p e d by them in accordance
with paragraph 1 of this article and shall also, to the maximum
extent feasible, norify him in advance of al1 placements by them
of radioactive rnatehls on the moon and the purposes of such
placements.
Unlike sentence 2 of Article IX of the Outer Spn~cTreaty, which calls for
adequate regulatory measures, where necessary, the Mooii Agreement obliges its
States Parties to give notice of al1 preventive measures taken, therebv
increasing the effectiveness of the duty to prevent d i ~ r u p t i o n ' ~Also.
~ . this
paragraph implies that States must "take precautions for al1 missions" in order
-
-
las
Jasentulyana, supra, note 100 at 394.
IW
van Tm-Engelman, supra, note 101 at 59.
234
to prevent di~ruption.'~'M i l e notice of preventive measures may be er pust
fnctu, advance notice is necessaxy for placement of radioactive materials.
However, the effect of this advance notice is weakened because it need only be
given "to the maximum extent feasible". Given that any State will likely be
aware of any placement of radioactive materials well in advance of such an
undertaking, there should in principle be no need to delay notice.
The scope of the Moori Agree?rioit encompasses the Moon, "orbits around or
other trajectories to or around [the Moon]" and other celestial bodies in our
solar system nlthout their own specific legal régin~e.'~'Therefore, protection
of the outer space environment perse and celestial bodies outside our solar
system is excluded. Also, there is no guarantee that celestial bodies in our
solar system, which n - i a ~have separate legal régimes in the future. wlll be given
protection similar to that of Article 7 of the Mam Agr-ee~iinit.
-
'O'
Stems and Tennen. supra, note 99 at 13.
'O8
Moon Agreement, supra, note 2 , art. 1, States in part:
1. The provisions of this Agreement relating to the moon shall also apply to other
celestial bodies within the solar system, other than the e h , except in so far as
specific legal noms enter into force with respect to any of these celestial bodies.
2. For the purposes of this Agreement reference to the moon shall include orbits
around or other trajectories to or around it.
23 5
The inclusion of orbits and trajectories of the Moon within the scope of the
~MoonAgreement could offer extensive protection for near-Eanh space,
depending on how Anide 1, para.
2'09
is interpreted. If orbits and trajectories
are constmed as areas of space rather than isolated locations in time, the scope
of the Agreement could take in "al1 space in the plane of the Moon's orbit
around Earth and endosed in that orbit, since a trajeaorv to the Moon mav be
plotted anyvhere in that plane .110
2 . Article 1 5 . ara. 2 of the Moon Aneenzent
'
Article 15, para. 2 of the lMoorl ~ g r e m e i i t '' provides that a State pan
request consultation if it reasonabl believes that another State p a m Thas
breached its duties under the Mooil Agrc'emitt or is interfering with the rights of
'O9
See ibid
''O
R.T. Swenson, "Pollution of the Extraterrestrial Environment" (1985) 25 A.F. L. Rev.
70 at 8 1-82.
"' Moon Agreement, supra, note 2, art. 15, para. 2, States: "A State Party which has
reason to believe that another State Party is not fulfilling its obligations incumbent upon
it punuant to this agreement or that another State Party is interfering with the rights
which the former State has under this agreement may request consultations with that State
Party. A State Party receiving such a request shall enter into such consultations without
delay. Any other State which requests to do so shall be entitled to take part in the
consultations. Each State Party participating in such consultations shall seek a mutually
acceptable resolution of any controversy and shall bear in mind the rights and interests of
States Parties. The Secretary-General of the United Nations shall be informed of the
results of the consultations and shall transmit the information received to al1 States Parties
concerned."
236
the requesting State under the Agreement. The State receiving this request
must enter into consultation without delay and attempt to seek a mutually
acceptable settlement. If such a settlement is not reached, the States involved
must use appropriate peaceful means to settle the dispute. ' l 2
This provision eliminates several ambiguities found in sentences 2 and 1 of
Article IX of the Outer Spnce Trentyl 13.
On the Moon, consultation may be
requested for ail instances of contamination, not just those which are both
"harmful" and could cause "potentiallv harmful interference". Article 15, para.
2 also e.xtends the consultation procedure to anv activitv causing potentiallv
ham~fulinterference, if that activitv would also disrupt the existing balance of
the Moon's environment. Consequently , activities which would have been
permitted under Anicle IX of the Outrr Spce Treaty due to the test for
"'Moon Agreement, ibid., art. 15, para. 3, States: "If the consultations do not lead to a
rnutually acceptable settlement which has due regard for the rights and interests of al1
States Parties, the parties concemed shall take al1 measures to settle the dispute by other
peaceful means of their choice appropriate to the circurnstances and the nature of the
dispute. If difficulties arise in connection with the opening of consultations or if
consultations do not lead to a mutually acceptable settlement, any State Party may seek
assistance of the Secretary-General, without seeking the consent of any other Stzte Party
concemed, in order to resolve the controversy. A State Party which does not maintain
diplornatic relations with another State Party concemed shall participate in such
consultations, at its choice, either itself or through another State Party or the SecretaryGeneral as an intermediary."
'
I3 On sentence 2 of Article IX of the Outer S'me Treaty, see supra, Section A.6(b); on
sentences 3 and 4 of Article IX, see supra, Section A.6(c).
237
"harmful", as interpreted frorn the human-centred perspeaive,'14 could now be
prohibited, even if they do not interfere with scientific, commercial or
govemment uses of the Moon.
The onus to determine whether the existing balance of the environment has
been disrupted rests with the States other than the one undertaking the
allegedly disruptive activitv because the undertaking State has no duty to
consult even when it suspects that its activity mav cause a d i ~ m p t i o n . " ~I t is
unclear whether anv dismptive activity must be held in abevance until a
mutually acceptable settlement is reached. Howvever, Article 15, para. 2
guarantees that anv request for consultation must be honoured promptlv and
facilitates consultations bv outlining a dispute resolution procedure.
IlJ
See supra, Section A. 1 and text accompanying notes 66-68.
'15 However, sentence 3 of Article IX of the Outer Space Treav is still applicable,
thereby obliging the undertaking State to enter into consultations if it reasonably believes
that any of its activities on the Moon could cause potentially harmful interference with
activities of other States in outer space and on other celestial bodies. as well as on the
Moon. See supra, text accompanying notes 89-92.
23 8
3. Article 3. Dara. 3 of the Moon Ameement
Article 3, para. 3 of the Moon Agreement1l6 provides:
States Parties shall not place in orbit around or other trajectory to or
around the moon objects carwng nudear weapons or anv other kinds of
weapons of mass destruction or place or use such weapons on or in the
moon.
This provision contributes to the environmental protection of the Moon by
prohibiting the placement of nuclear weapons in orbits around or in other
trajectories to or around the Moon.'" and on or in the Moon. Article 3, para.
3 addresses the fact that no reference was made to the Moon in rhe provision
in the Outcr Spncc TrentylLS
on the placement of nuclear weapons in outer
space. ' '
C. Other Possible Sources of International Law relevant to
Environmental Protection in Outer S ~ a c e on
. the Moon and
on Other CeIestial Bodies
TIVOother multilateral treaties, which contain provisions relevant to the
protection of the outer space environment, are the Parn'd Nuclenr Test Brin
Treny and the Ewiron?~znitnlModij?cr<tionCmveiitiori.
Supra, note 2.
' " On Moon orbits and trajectories, see supra, text accompanying notes 108-1 10.
"'Supra, note 1 .
See supra, Section A.7. See also, infa, Section C. 1 .
239
1. The Partial Nuclear Test Ban Treatv
Anide 1, para. 1(a) of the Partial NucZear Test Ba11 Trercty'" provides:
Each of the Parties to this Treaty undertakes to prohibit, to prevent and
not to carry out any nudear weapon test explosion, or any other nuclear
explosion, at any place under its jurisdiction or control in the
atmosphere; beyond its limits, including outer space; or under water,
including temtorial waters or high seas.
This provision contnbutes to the environmental protection of outer space, the
Moon and other celestial bodies with its prohibition against nuclear weapon
test explosions in outer space. The prohibition complements the pro~lsionsin
the Outrr S p c e Trenty"' and the Mooiz ~grernierlt"' regarding the placement of
nuclear weapons in orbit around Earth and the Moon, or on the Moon and
other celestial bodies. ' 2 3
Treaty Banning Nuclear Weapons Tests in the Armosphere, in Outer Space and under
Waer, 5 August 1963. 14 U.S.T. 13 13, T.LA.S. No. 5433 [hereinafier Partial ATuclear
Test Ban Treuty] (entered into force 10 October 1963).
''O
"'
Supra, note 1 .
"' Supra, note 2 .
'23
See supra, Section A.4 and Section B.3.
240
2 . The Environmental Modification Convention
The Environme~itdModijcation Coi~vention'~~
prohibits military o r other hostile
uses of techniques which, through deliberate manipulation, could change the
dynamics, composition or stnicture of outer s~ace."'
The effectiveness of this
A
provision as a regdatory mechanism for protection of the outer space
enklronment per se could be severely limited, if application of the Enviroizi~zozttil
Modificntioii Coniviitioii is restricted to contracting States. If this were the case.
"'Convention on the Prohibition of Military or Any Other Hostile Use of Environmental
.Mod$cation Techniques, 18 May 1977,31 U.S.T.333, T.I.A.S. No. 9613, 610 U.N.T.S.
1 5 1 [hereinafter Environmental Modificarion Convention] (entered into force 5 October
1978).
Iz5
Environmenfol Modification Convention, ibid. at art. 1, para. 1, and art. II, States:
1.1 Each State Party to this Convention undertakes not to engage in military or
other hostile use of environmental modification techniques having widespread,
long-Iasting or severe effects as the means of destruction, damage or injury to an).
other State Party.
II. As used in article 1, the term "environmental modification techniques" refers
to any technique for changing -- through the deliberate manipulation of natural
processes -- the dynarnics, composition or structure of the earth, including its
biota, lithosphere, hydrosphere and atmosphere, or of outer space.
"Environmental modification techniques include changes in weather or climate patterns.
ocean currents, the state of the ozone layer or ionosphere, or upsetting the ecological
balance of a region." W.B. Winn, "Constraints on Military Manned Activities in Outer
Space", at 5. Paper prepared for presentation at Armed Forces Communications and
Electronics Association Symposium on Man's Role in Space, Colorado Springs, Colo..
August 1987.
24 1
the Conve~itioriwould apply only to the territories of ratihring States, and not to
the outer space environment per se?
Another limitation on the prohibition against environmental modification
techniques is that these techniques may be used for peaceful purposes, as
permitted by international lawl?
D. Effects of Current Environmental Protection Provisions in
International S ~ a c eLaw on the A ~ ~ I i c a t i oofn International
Environmental Law to Space Projects
The preceding sections indicate that what are considered to be the provisions
for environmental protection in space law, notably Article IX of the Outc'r Spari*
Trtrrg, have little to do with protecting and presening biological entities-inecosvsterns and e v e ~ h i n g
to do with ensuring the use of the outer space
environment for space projects so as to avoid the loss of economicallv and
politically valuable space assets.
D.E.Reibel, "Prevention of Orbital Debris", at 5. Paper prepared for presentation at
30th Congress, International Institute of Space Law, Brighton, October 1987.
Environmental Modflcation Convention, supra, note 124, art. III, para. 1, States: "The
provisions of this Convention shall not hinder the use of environmental modification
techniques for peaceful purposes and shall be without prejudice to the generally
recognized principles and applicable rules of international law concerning such use."
'21
242
Despite their la& of sufficiently dear reference, the applicable environmental
provisions of space law do not explicitly contradict the emerging pnnciples of
international environmental law. Consequently, the latter can be applied to
'
that
space projects, given that Artide III of the Outer Space T r e a ~ ' ~requires
States must "carry on aaivities in the exploration and use of outer space,
including the Moon and other celestial bodies, in accordance with
international law".
If a n ~ ~ h i nthe
g , provisions of Article IX of the Outrr S p c e T r e q rend to
suppon contemporary international environmental law, albeit in a verv general
and not particularly effective manner. The obligations to CO-operateand
provide mutual assistance are not oniy fundamental to Article IX.'29but also
represent customan, international law, panicularly in the field of international
further obligation in Artide IX to conduct activiries
environmental ~ a w ' ~ 'The
.
"' See supra, note 90.
Iz9
See supra, text accompanying notes 69-70.
"O
"[Tlhe requirement of international cooperation underlies al1 international
environmental law." A. Kiss & D.Shelton, International Environmental Law (Ardsleyon-Hudson, NY: Transnational Publishers, 1991) at 13 1 . See also, ibid. at 107 and 1 31132; T. Iwama "Emerging Principles and Rules for the Prevention and Mitigation of
Environmental H m " in E.B. Weiss, ed., Environmental Change and International Law
(Tokyo: UN University Press, 1992) 107 at 1 16-118, and P.W. Bimie & A.E. Boyle,
International Law and the Environment (Oxford: Clarendon Press, 1992) at 1 02- 103. On
mutual assistance, particularly in emergency situations, see Kiss & Shelton, ibid at 106
and 132-133, Iwama, ibid at 121-122 and Birnie & Boyle, ibid at 108-1 09.
243
with "due regard to the corresponding interests of al1 other States Parties to
the Treaty" places limits on the absolute freedom on the use by States of outer
space.13' This limitation acts as a deterrent against unrestricted use of the
outer space environment in a manner analogous to the restriction that the
principle of good neighbourliness places on the absolute freedom of States to
use their natural "resources" as they w i ~ h . ' The
~ ~ obligation to consult
supports a similar requirement in international environmental law to address
adverse effects occumng in more than one State"'.
Hoivever, the scope and content of these general obligations require expansion
and additional detail so that thev c m be applied not only to space projects,
but also t o environmental concems arising from these projects. In Article IX of
the Outer Spnu Trerity, the interpretation of "corresponding interests"I3' should
be broadened to include protection of the outer space environment. The
subjective "reason to believe" test in Artide IX should be amended so that it
13'
See supra, text accompanying note 57.
13'
See Chapter I I I , supra, text accompanying notes 64-65.
See Kiss & Shelton, supra, note 130 at 139-141 and lwama supra, note 130 at 1 1912 1 . See also, Chapter IV, supra, text accompanying notes 1 80- 18 1.
13'
13'
See supra, text accompanying notes 73-74.
244
becomes an objective test deterniined by independent experdfs The test
should also be in conformity with the principle of precautionaiy measures to
ensure prevention in cases of scientific uncenainty. Independently set
international regulations should be developed for al1 adverse effects to the
outer sDace environment, induding standards for c ~ n t a m i n a t i o n ' ~ ~ .
t , ' ~ 'its obligation on States to
Article 7, para. 1 of the Moori ~ ~ r e e n i e ~ iwith
" take
measures to prevent the disruption of the existing balance of its
environment" for al1 space projects, "'refiects the ecosystem management
approach139by attempting to identih, and mitigare anv adverse effects of a
project on the econrstem. Here, too, space projects should be govemed bv
independent international standards and the principle of precautionarv
measures. In view of their potentially catastrophic effect, consideration should
13'
See ibid, text accompanying notes 66-67.
'36
See supra,text accompanying notes 78-79.
13'
Supra, note 2.
'j8
See supra,text accompanying notes 102- 105.
13'
See Chapter IV,supra,tex? accompanying notes 8- 12.
245
be given to the extent to which nudear porver sources and similarlv ultrahazardous materials should be permitted in outer space.lqO
What is most important is to ensure that measures for the protection and
preservation of the outer space environment are taken by design, not bv
coincidence, as is currentiy the case.14' To institute a planned, preventive
biosphere management régime from the biocentric moral perspective will
require a major adjustment in the current attitudes and thinking of political
and technological elites. It is not. however, an impossible undenaking.
Chapter VI sets out one effort to meet this challenge, with a proposal for
incorporaring the basic principles of international emlronmental law and
biosphere management into international space law.
See e.g., "Disposal of Nuclear Waste in Space" (13-1 9 February 1995) Space News 15
and "Astronomers in Two Camps over Topaz Protest" (14-20 December 1992) Space
AJews23.
'*O
14'
See supra, text accompanying notes 66-68.
CHAFTER Vi: PROPOSAL FOR AN ENVIRONMENTAL PROTOCOL
TO ARTICLE TX OF THE OIJTER SPACE TREATY
International space Iaw and international environmental law are both relatively
new branches of international law still in their formative years. On their
separate paths, they seem to have lost sight of one another. The purpose of
this chapter is to integate the two legal fields so that international
environmental law can be applied to any adverse effects to the Eanh and outer
space environments ("the planetan? environment") arising from space
activities.
Section A proposes a legislative format for environmental protection in the
planetaxy enllronment and sets out its basic features. Section B applies the
basic principles of international environmental law and the legal obligations of
biosphere management to space projects.
A. The Environmenta1 Protocol
The Otiter Sprrcr T r e n is
~ an international instrument, containing principles on
which the law applicable to space projects is being progressivelv developed.
For example, Artide VI1 of the Outer Space Trmty' contains a general principle
'
Treaiy on Principles Governing the Activities of States in the Exploration and Use of
OuferSpace. including fhe Moon and Other Celesfial Bodies, 27 January 1967, Cm. T .S.
1967 No. 19, 18 U.S.T. 2410, T.I.A.S. No. 6347,6 10 U.N.T.S. 205 bereinafter Outer
Space Treafy] (entered into force 10 October 1967).
247
uith respect t o liability, which was further elaborated in the Liability
Convention2. Articles V and VIII of the Outer Spncr Trenty3set out general
obligations, respectively, for the assistance to, and retum of, astronauts and for
the retum of space objects; these are expanded upon in the Rescue m d Retuni
Agreem e ~tii .
Sirnilarlv, given thar Article IX of the Outrr S p c r Trrnt-v contains general
obligations for protecting the outer space environment, a supplemental treatv
instrument would expand upon those obligations. Such an arrangement is not
without precedent. The Madrid Prutoco15 supplements the Alztnrctic Ti-rritybbv
enunciating elaborate principles for emlronmental protection in the Antarctic.
Such a protocol would provide a means for applving conteiiiporanTprinciples
'
Convention on Interncztionol Liabilityjor Damage Cnured by Space Objects, 2 1
November 1971, Cm. T.S. 1975 No. 7,24 U.S.T. 2389, T.I.A.S. No. 7763. 961 U . N . T . S .
1 87 [hereinafter Liability Convention] (entered into force 1 September 1972).
j
Supra. note 1 .
' Agreement on the Rescue of As tronauts, the Return of Astronazrts and the Return of
Objects Launched into Outer Space, 22 April 1968, Can. T.S. 1975 No. 6 , U.S.T. 7570,
T.1 .AS. No. 6599,672 U.N.T.S. 1 1 9 [hereinafter Rescue and Return Agreement] (entered
into force 3 December 1968).
Protocol on Environmental Protection of the Antarctic, 4 October 1991, ATS Doc. XI
ATSCM/2/3/2 (199 1), reprinted in 30 I.L.M. 146 1 [hereinafter Madrid Protocofl (not yet
in force).
Antarciic Treaty, 1 December 1959, 12 U.S.T. 794, T.I.A.S.No. 4730.402 U.N.T.S. 7 1
(entered into force 23 June 1961).
248
of international environmental law to space projects. The Protocol for the
Protection and Preservation of the Planetary Environment to Article IX of the
Outer Spnce Trenty ("Environmental Protocol") w o d d be the first stage, setting
out general principles and specific obligations. The second stage would address
the regulation of particular projects as the need arises.
This two-stage approach conforms to an emerging trend in international
environmental law for regulating human conduct in ecosystems. A franiework
or urnbrella agreement is enacted, setting out an agreed statement of general
principles and legal obligations, according to which the parties will be bound.
The general instrument is then supplemented by protocols which mainlv
provide for the setting and implementation of technical standards.' General
principles in the framework agreement are based on the nature of the activitv
and the constraints required to avoid adverse effects in a particular ecosvstem.
The protocol enacts the scientific and technical standards and compliance
schedules, usually for specific substances and activities causing adverse effects.
' See generally, G. Handl, "Environmental Security and Global Change: The Challenge
to International Law" in W. Lang, H.Neubold & K. Zemanek, eds, Environmental
Protection and International Law (London: Graham & Trotman, 1991) 59 at 6 1 -63. See
also, P.C.Szaz, "International Nom-making" in E.B. Weiss, ed., Environmental Change
and International Law: New Challenges und Dimensions (Tokyo: U N University Press,
1992) 41 at 63-64.
249
The régime for proteaing and preserving the ozone Iayer provides a
panicularly gûod illustration of the framework-protocol arrangement. The
Ozone Layer Co~ivention~
sets out the general principles applicable to the
regdation of any substances whidi States parties may agree could have adverse
effects on the ozone Iayer. The Montr~nl rot oc op provides the specific control
measures for substances with adverse effects on the ozone layer, particularly,
but not limited to, chlorofluorocarbons. A major advantage of this system has
been the flexibility provided bv the ability of the ozone Iayer régime to adapt
to rapid changes in scientific and technical information.1° Flexibility in
advantageous in the
response to new information would be panicularl~~
relatively nascent field of space science and technologv.
Protocols can be implemented when the need arises. Because thev are mainly
technical in nature, protocols can be designed to provide for easier
Vienna Conventionfor Protection of the Ozone Layer, 22 March 1985, UN Doc.
UNEPnG.53 5 (1 985), reprinted in 26 I.L.M. 1 5 1 6 [hereinafter Ozone Layer Conventio~]
(entered into force 22 September 1988).
Montreai Protocol on Substances that Deplete the Ozone L q e r , 16 September 1987,
reprinted in 26 I.L.M. 1550 [hereinafker Montreal Protocol] (entered into force 1 January
1989).
W. Lang,"Environmental Treatymaking: Lessons Leamed for Controlling Pollution of
Outer Space" in John A. Simpson, ed., Preservation of Near-Earth Space for Future
Generations (Cambridge: Cambridge University Press, 1994) 165 at 170-1 7 1 .
'O
250
negotiations, enactment, amendment and entry into force." In the ozone
régime, e-g., the Mo~itrealProtoc02'~was opened for signature prior to the entn?
into Force of the Ozone Layer Coiiventiori , 1 3 its framework convention. l 4 When
the standards in the Protocol were found to be insufficient for the satisfactorv
replation of ozone-depleting substances, i t undenvent a "complete overhaul"
in 1990, less than two years after its entry into force!
The framework-
protocol arrangement can pro\lde a forum for scientists to work without
political, legal or other constraintsJ6and is. overall, "less cumbersonie and
time-con~uming"~'.
II
See Szaz, supro. note 7 at 64-65.
"
Supra, note 9.
l3
Supra, note 8.
14
Lang, supra, note 10 at 170.
l 5 Ibid. at 17 1 . See also, Amendment to the Montreal Protocol on Substances lhat
Deplete the Ozone Layer, 29 June 1990, UN Doc. UNEP/OzL.Pro.2/3 ( 1 990), reprinted in
30 I.L.M. 539 [hereinafier London Adjustments] (entered into force 10 August 1992).
l6
Lang, supra, note 10 at 1 78.
l7
Handl. supra, note 7 at 61.
25 1
In the space law context, the Environmental Protocol would represent the
framework instmment, with its supplementary technical agreements designated
as Annexes, in a manner similar in form to the Antarnic Treaty Senes."
B. Basic Princides and Lenal Obhations
As a framework agreement, the Environmentai Protocol would contain general
principles applicable to space projects in the pianetary environment. These
provisions would be derived from the basic pnnciples of international
environmental law and the general obligations for biosphere management set
out in Part Two. The purpose of this section is to enunciate these principles
and obligations as they would appl t o space projects.
1. Basic Princioles of International Environmental Law in the
Planetarv Environment
The four basic principIes of international environmental law developed in
Chapter III represent a biocentric approach for addressing environmental
issues on Earth and in outer space. In this subseaion, these principles are
'*
The five Annexes to the Madrid Prorocol, supra, note 5, form an integral part thereof.
The Annexes, which apply established methods of environmental protection to the special
needs of the Antarctic, include Annex 1 on Environmental Impact Assessment. Annex II
on Conservation of Antarctic Fauna and Flora, Annex III on Waste Disposa1 and Waste
Management, Annex IV on the Prevention of Marine Pollution and Annex V on Area
Protection and Management. Additional Annexes may be added to the Madrid Protocol.
if necessary .
modified to account for the unique charactenstics of the planetaly
environment.
{a)
The Principie of Common Planetarv Concem
The planetary environment is an ecosystem encompassing Earth,
celestid bodies and the space plasma which surrounds them. Where
humankind's space projects could have adverse effects on this
environment which, for greater certainty, includes the biosphere, the
prevention and protection of the planetary environment from these
adverse effects is the responsibility of humankind through
supranational action, whether these adverse effects arise within the
jurisdiction and control of sovereign States or in res cornmunis or other
temtories beyond their jurisdiction. Space projects involving natural
"resources" in the planetary environment shall be subject to
planetary management for the benefit of present and future
generations of biolund.
This principle incorporates the basic elements of the principle of common
concern for the biosphere.19 It is intended to apply to space projects rather
than to the specific ecosystem called "outer space" because space projects as a
mle affect several ecosystems in junsdictions within and outside the control of
States. Take, e.g., a project to place in orbit a satellite for maritime search and
rescue purposes. This project includes the manufacture and production of at
Ieast three stages for the launch vehide, the bus and operational components
of the satellite and the fuel for both. Manufacturing these goods requires
l9
See Chapter III, supra, Section A.
253
specialized process and production rnethods which may require d e a n
technologies to prevent, or mitigate and control, if necessary, any adverse
effects. Spacepons, located around the world, incorporate different rnethods
for Iaunching, tracking and recovering space objects and rnav have their own
dean redinologv needs or other environmental concems.
Once launched, the rocket and its payload ma? pass through several legal
junsdictions: national air space, international air space, the high atmosphere.
including the ozone layer, and outer space. In outer space, the creation of
space debris gives rise to a separate set of problen~s.'~Some pavloads and
rocket stages ma\. land or impact on the Moon or some other celesrial body;
satellite pavloads placed in G E 0 mav have orbital lifetinies of millions of
vears. Where components of the space object retum to Earth, thev niav
dissipate on re-entr)., or re-enter and touch down on land or, more likelv, in a
manne ecosystem; on impact, they may be recovered or irretnevable.
Each of these phases in the life cyde of a space project rnav have its own
adverse effects. Because each of these stages is related to the whole of the
space project, they are subjects of the common planetaiy concem.
-
'O
-
-
-
.
--
-
See Chapter VII, in&.
254
The pnnciple of common planetary concern ensures that al1 activities and
substances, however connected with a space project, will be examined for
possible adverse effects to any ecosystem, on or off Earth. In this manner, al1
environmental concems conneaed with space projects may be canvassed.
Jurisdictional disputes, such as the location of natural "resources" or whether
an adverse effect occurred in national air space, international air space or
outer space, can be avoided." "Common planetary concem" also ensures that
al1 biological entities-in-ecosvstems are subjects of consideration when
detemiining the adverse effects of space activities.
/b) The Princi~leof Good Neiehbourliness
Every State shall bear international responsibility, in accordance with
Article VI of the Outer Space Treaty, for ensuring that any space
project, o r element thereof, camed out in areas within the
jurisdiction and control of a State, does not have adverse effects on
any biological entities-in-ecosystemsin the planetary environment.
This principle sets out an international legal obligation for human conduct
when undenaking space projects. I t adapts the customary international law
prinuple of good neighbourliness as stated in Principle 2 1 of the Stucklzoln~
" A particularly good exarnple of transjurisdictional adverse effects of space projects is
their contribution to depletion of the ozone layer fiom components of launch vehicle
fùels. See "SDIO Hears Environmental Input" (2-8 March 1992) Space hTews26; C.Q.
Christol, "Stratosphere Ozone Problem and Space Activity" (1992) 35 Colloq. L. Outer
Sp. 259, and M. Rothblatt, "Environmental Liability Issues of Rocket Exhaust under
International Space Law" (1992) 35 Colloq. L. Outer Sp. 307.
255
Dedaration and applies it to al1 biological entities-in-ecoystems in the
planetary e n v i r o n n ~ e n t The
. ~ ~ principle of good neighbourliness applies t o
activities normally considered within the exclusive domain of sovereign States
because space projects affect areas of common concem. Accordingly, uses of
natural "resources" within State temtory may be constrained to the extent that
they may have adverse effects o n the planetary environment, an area of
common c0nce1-n.~~
Article VI of the Outrr S p c e Tre~ity,'~
which provides for international
responsibilitv of States for their space actiklties, is incorporated by reference.
W i t h Article VI, State responsibilitv for space projects is extended to projects
undertaken bv State nationals and bv international organizations in which a
State participates. Under Article VI, States are also responsible for the
77
-- See Chapter III. supra, Section B.
'' See ibid., text accompanying notes 64-65 and at 106.
'"Outer Space Treaty, supro, note 1, art. VI, States: "States Parties to the Treaty shall
bear international responsibility for national activities in outer space. including the moon
and other celestial bodies, whether such activities are carried on by govemmentai
agencies or by non-govemmental entities, and for assuring that national activities are
carried out in conformity with the provisions set forth in the present Treaty. The
activities of non-governmental entities in outer space, including the moon and other
celestial bodies, shall require authorization and continuing supervision by the appropriate
State Party to the Treaty. When activities are carried on in outer space, including the
moon and other celestial bodies, by an international organization, responsibility for
cornpliance with this Treaty shall be borne both by the international organization and by
the States Parties to the Treaty participating in such organization."
256
authorization and continuai s u p e ~ s i o nof the space projects of their
nationds.
This adaptation of the pnnciple of good neighbourliness is intended to ensure
that space projects will not have adverse effects in any ecosystems whether
within or beyond State junsdiction and control. The ultimate effect of this
principle is to require the development of international standards applicable to
activities within States for those aspects of space projects which mav have anv
adverse effects on any biological entities-in-ecosystems. The technical annexes
n ~ ~ a precedent for such internat ional
to the Cliiqo C o ~ t v r ~ i t i oprovide
standards. Article 3 7 of the Chicago Coitvtxtio~iprovides for unifom~itvof
regulation in order to "facilitate and improve air na\lgati~n".'~Application of
international standards to al1 space projects could result in safer and cleaner
'*Convention on international Civil Aviation, 7 December 1944. 15 U.N.T.S. 295
[hereinafter Chicago Convention] (entered into force 4 Apnl 1947).
Chicago Convenrion, ibid., art. 37, States in part: "Each contracting State undertakes to
collaborate in securing the highest practicable degree of uniformity in regulations,
standards, procedures, and organization in relation to aircraft, personnel, ainvays and
auxiliary services in al1 matters in which such uniformity will facilitate and improve air
navigation. To t h i s end, the International Civil Aviation Organization shall adopt and
amend from time to time, international standards and recomrnended practices and
procedures dealing with ... matters concemed with the safety, regularity, and efficiency of
air navigation ... ." The subject matter of the annexes to the Chicago Convention include
air traffic services, operation and aiworthiness of aircraft, search and rescue, aeronautical
communications, aeronautical information services and aircrafi accident investigation.
Of particu1a.r interest are Annex 16 on Environmental Protection and Annex 18 on The
Safe Transportation of Dangerous Goods by Air.
'6
rocket launches:'
improved techniques for the production and waste
management of materials used in the manufacture of launch vehicles and
p a y l ~ a d and
s ~ ~cleaner eco~ysterns~~.
{cl The Princinle of Precautionaxv Measures
Where scientific uncertainty exists about the possible adverse effects
of an activity or substance c o ~ e c t e dwith a space project in the
planetary environment, including the biosphere, the implementation
of the activity in, or introduction of the substance into, a planetary
ecosystem should be prohibited unless the responsible State can
demonstrate, with scientific certainty, that the activity or substance
will have no adverse effect.
'' See e.g.. "China Disputes Casualty Claim" (4-10 March 1996) Space News 1 : On 15
Febmary 1996, a launch vehicle crashed into a hillside and exploded shortly afier lift-off.
approximately 1.5 km from the Zichang Satellite Launch Centre, reportedly resulting in
six deaths, at least 57 injuries and extensive damage to the Chinese launch facility. See
also, "Culture, Fish Shape Tanegashima Operations" (1 4-20 Febmary 1994) Space .4'e1vs
1 1 : The social and working habits of a 30-household f m i n g village influenced both
launch safety procedures at the Japanese launch facility on Tanegashima Island and the
design of the H-2 launch vehicle.
'' See e-g., "Rockwell Pleads Guilty" (9 April 1996) The Globe and Mail (National
Edition) B6: Rockwell International paid US$6.5 million as compensation for the death
of two men killed when a rocket engine exploded at its California testing grounds.
See e-g., "Lawsuits Threaten ASRM Tests" (4-1 0 November 1994) Space News 4:
Rural land-owners and environmentalists sought to enjoin the US National Aviation and
Space Administration ("'NASA") from testing rocket motors in Mississippi. Applicants
were concemed about "toxic fallout" fiom the test firings; "Rocket Motors Tagged for
Cleanup" (1 8-24 April 1994) Space News 17: US Pentagon officiais sought '90 cut
cleanup costs and avoid environmental sanctions" by attempting to address pollution
problems, and "American Company Tests New Hybrid Rocket Motor" (3 1 Oct - 06
November 1994) Space News 13: If successfûl, the motors are "expected to provide
cheaper, safe and cleaner access to space ...".
'9
258
This pnnciple restates the biocenuic adaptation of the principle of
precautionary measures30 and applies it to al1 space projects in the planetary
environment which may cause any adverse effects to any biological entities-inecosystems. The priority in bringing space projects to fmition becomes
prevention, not the cost of prevention. If it can be shown during the screening
stage of the biosphere risk assessrnent process that the project is an appropriate
one,31then economic incentives are available to assist in dewloping the space
project32. Evaluation of space projects now focuses on the possibility of the
risk of adverse effects, not the possibility of adverse effects.
G i w n the highlv novel nature of many space projects, particularlv those
concerned with multi-satellite communication constellations, on-site
constniction of an international crewed space station and uncrewed missions
to celestial bodies,33the principle of precautionary measures places severe
constraints on space projects. These constraints indude a low threshold for
~ standard of scientific
application of the principle -- "adverse e f f e ~ t s " a; ~high
'O
See Chapter III, supra, Section C.2.
31
See Chapter IV, supra, Section C.3(b)(ii).
32
See ibid at Section C.2.
33
See Chapter 1, supra, text accompanying notes 10-1 7.
34
See Chapter III, supra,text accompanying notes 127- 129.
259
certainty, based on the statistical probability that a panicular activirv or
substance will pose the risk of an adverse effect on an e c o ~ y s t e mand
;~~a
burden of proof on the project developer to demonstrate that there is no
probability of nsk of an adverse e f f e ~ t ~Demonstrating
~.
adverse effects is a
prime function of the biosphere risk assessrnent pro ces^.^'
Precautionarv measures in the planetarv environment are to be taken for al1
space projects, including those alreadv in progress. For this latter class of
projects, it would be unfair to applv the test of scientific uncenaintv, which
could result in the suspension or termination of the project. In such cases,
space project developers would be able to take al1 necessary interim measures
to mitigate and control the adverse effects, while concurrentl~developing
appropriate "degradation-free", or clean, technologies.3s
/dl The Princi~leof Sustainable Develo~rnent
Subject to the principle of precautionary measures, where the basic
interests of any biological entities-in-ecosystems are in issue, space
'
See ibid,text accompanying notes 85-87.
36
See ibid.,text accornpanying notes 130- 134.
'' See Chapter IV, supra, Section C.3.
38
See Chapter II, supra, text accompanying notes 1 19- 126.
projects undertaken to fulfil these interests s h d maintain a net level
of consumption of dl biological entities-in-ecosystems, including
physical entities, in order to meet these basic interests.
This principle relegates the concept of sustainable d e ~ e l o p r n e nto
t~~
a
subordinate function in its application to space projects. The principle of
sustainable developrnent is overarchingly anthropomorphic in its moral
per~pective;'~
i t supports "development" over "environment";" it places liniits
on the application of the principle of precautionary measuresTi2and ir stands
in conceptual opposition to the principles of common planetarv concem and
good neighbourliness.
As applied to the planetary environment. the principle of sustainable
development is modified in several wavs. Given that the impetus for the
concept of sustainable dewlopment was to meet the basic interests of
humankindTi3the principle is limited in its application to circumstances in
which the basic interests of huniankind are threatened and, at the same tinie,
is broadened to apply to the basic interests of al1 biological entities-inl9
See Chapter III, supro, Section D.
See ibid., text accompanying notes 186- 189.
''
See ibid., text accompanying note 199.
"
See ibid., text accompanying notes 200-201.
53
See ibid., text accornpanving; notes 140- 146.
26 1
ecosysrems. Where conflicts arise in fulfilment of these basic interests, the
pnnciples of biocentric management are i n ~ o k e dand
~ ~applied dunng the
screening stage of the biosphere nsk assessment
pro ces^^^.
Second, where it is conclusively demonstrated that a space project is necessaw
for sustainable development, the principle of precautionary measures is applied
during the comprehensive review stage of the biosphere risk assessment
process?
Third, in keeping with the biocenrric aim of minimum impairment
to any e c o ~ ~ s t e mthe
, ~ ' principle stipulates that interference with biological
entities-in-ecosvstems is limited, where possible, to a steady state level of
consump tion, not a growth leve1'ls.
In the foreseeable future, it is difficult to conceive that space projects ni11 be
specificall\r designed to meet the basic interests humankind or, even less likelv,
the basic inrerests of biokind. Certain space projects, such as the developnient
4J
See Chapter II, supra, Section C.Z(b)(ii).
45
See Chapter IV, supra, Section C.3(b)(i).
46
See ibid. at Section C.3(b)(ii).
'' See Chapter II, supra, Section C.Z(b)(ii)(c).
4g
See Chapter III. supra, text accompanying notes 1 7 1 - 178.
262
of cheaper off-Eanh energy source^,'^ could, of course, contribute to meeting
the basic interests of the less fortunate populations. On a more optimistic note.
however, the principle of sustainable developmenr could. and perhaps should,
be treated as an interim measure, designed to alleviate the suffenng of al1
biological entities-in-ecosystems until such time as humankind alters its
conduct sufficientiv to meet the basic interests of al1 biokind.
2 . Lena1 Oblinations for Planetani Mana~ement
In the context of space projects, "biosphere management" becomes
management for the protection and preservation of the planetary environment
management"). In this subsection, the three legal obligations for
biosphere management, through which States acquire legal responsibilitv for
their conduct and attract anv resulting legal liabili , are amended accordinglv.
See e.g., "Exotic Fusion Energy Ideas Pushed by Helium-3 Fans" (30 August-5
September 1993) Space News 16: The Moon is believed to contain large amounts of
helium-3 beiow the surface. If it coutd be extracted and exported to Earth, it could prove
to be a relatively cheaper fuel source for fûsion reactors. Unlike nuclear reactor fuels,
helium-3 creates no radioactive wastes. See also, "SSI Report on NASA's Clean Energy
Source, Lunar Study Now Available" (March 1990) Spacewarch 10, which refers to
projects to use lunar materials to build solar power satellites and to convert the surface of
the Moon into solar cells, both of which would transmit energy to Earth.
19
{a) Res~ectfor Nature
States have an obligation to respect the inherent worth of the
planetary environment, which includes al1 biological entities-inecosystems, and to maintain its natural processes.
This obligation extends the central biocentnc moral imperative to al1
components of the planetaxy environment, entitling outer space and al1 natural
entities therein. induding celestial bodies, as well as biological entities-inecosystems. to respect as pan of nature. This entitlement is derived from the
fact that al1 natural entities are outcornes of the universal forces released at the
time of the "big bang" and, as such, constitute one ecosvstem.
The "big bang" is the currentlv favoured cosrnological theon. for the creation
of the
ni verse.^^ It posits that a11 matter in the universe was concentrated in
an infinitelv srna11 volume. When this matter became unstable, it exploded.
began to expand and is still expanding. The matenal loosed during the "big
bang" is the substance of al1 natural entities in the universe. Humanlund
should therefore respect nature as it appears in the planetarv environment
because i t is the true uadle of the evolutionary histo~yof civilization on
See S. Hawking, A BriefHistory of Time: From the Big Bang to Black Holes (Toronto:
Bantam Books, 1988) at 35-5 1 and J.D. Barrow, The Origin of the Universe (New York:
Basic Books. 1994) at 19-35. See also, S. Weinberg, The First Three Minutes: A Modern
View of the Origin of the Universe (New York: Basic Books, 1977).
'O
264
Eanh."
In addition to sharing this common origin, humankind and al1 other
~'
arguablyIs3
naturd entities have other charactenstics in c o r n m ~ n , which,
entitle them al1 to equal respect.
The obligation to have respect for nature acknowledges that the biosphere is
nierely one ecosystem among many in the planetary environment. The solar
system, with its components ranging in size from the Sun and the planets t o
intergalactic plasma and simple molecular compoundsls"evolves according t o
its own laws in a unique coniplex of interre~ationships.~~
The Sun has its o n n
See also. Chapter 1, supra at 1 1 - 12. "[Tlhe center of the universe resides in each of us
as truly as it does in the Milky Way or in the constellation Andromeda." A.G. Haley.
Space Law and Governmenr (New York: Appleton-Century-Croftç, 1963) at 396. See
also, G.S. Robinson and H.M. White, Jr., Envoys of Munkind: A Declaration of Firsr
Principles for the Governance of Space Socieries (Washington, DC : Smithsonian
Institution Press, 1986) at 3-6.
"
'' (1) All naniral entities share a common process of creation, characterized by the nature
of quanta (matterlenergy). See D. Bohm, Quantum Theory (Englewood Cliffs. NJ:
Prentice-Hall, 1953) at 16 1- 162; (2) A11 natural entities share a common structural basis,
characterized as a system. See L. von Bertalanffy, General Systems Theory: Foirndarions.
Development, Applicufions (New York: George Braziller. 1968) at 55-56; and ( 3 ) Al1
natural entities have a self-organizing capacity, enabling them to account for differences
and to adapt to changes in their surroundings. See 1. Pngogene & 1. Stengers. Order Our
of Chaos: M m S New Dialogue with Nature (Toronto: Bantam Books, 1984) at 160-17 1.
See also, ibid.at 2 13-232.
53
See Chapter II, supra, text accompanying notes 6-1 6 .
'" See Chapter 1, supra at 10-1 1.
See generally, 1. Petenon, Newton's Clock: Chaos in the Solar Sysrern (New York:
W.H. Freeman, 1993).
55
265
life cycle as a star, evolving according to its own nudear a ~ t i o n s . 'The
~ planets
have sophisticated ecological systems, each processing universal matenals in its
own unique mariner."
None of the ecosvstems in the planetary environment is self-contained. Their
evolution is interdependent. Just as the biosphere forms a whole based on the
sum of irs parts and the relationships among them, the planetary environment
is also an open svstem, each component ecosystem continually exchanging
matter and energv with its neighbours. Primitive elemental materials beconie
galaxies and solar svstems. Waves of solar ultraviolet light chernicall~interact
with oxyger. to create the ozone layer and other elemenrary panicles in Eanh's
a t n i o s ~ h e r e .Incom~letelv
~~
understood physio-chernical relationships exist
L
L
between the charged particles comprising the upper reaches of the arniosphere
and near-Earth space, and the solar plasnia accelerated toward Earth by the
energy of the Sun.19 The Sun not o d v provides the energy of life, but
produces a solar wind containing elernental paniculate matter which is
56
See Chapter 1, supra at 12- 13.
57
See ibid. at Section B.3.
58
See ibid. at 20-22.
59
See ibid. at 22-23.
266
scattered to the far reaches of the solar system and beyonda6*Even the oftdescribed lifeless and banen Moon not oniv affects water levels and, hence,
numerous ecosvstems on Earth, but also has a "flimsy atmosphere" which
changes in composition according to chernical reactions originating below its
surface.61
To give full meaning t o the attitude of respect for nature during hurnankind's
use and exploration of the accessible regions of the planetan, environment,
protection is extended to al1 natural entities in planetarv ecosvstems, including
their intenelationships. Accordinglv, al1 steps necessarv should be taken to
determine whether biological or analogous alien entities-in-ecosvstems ("alien
entities") exist. Where alien entities do exist, al1 possible efforts should be
made to accord them the same respect as that conferred upon biological
entities-in-ecosystems. Where there is scientific uncenaintv as to whether
alien entities exist, there should be a presumption in favour of their existence.
Al1 steps should be taken avoid any interference with the fulfilment of their
60
See ibid. at 13- 14.
G.J. Taylor, "Geological Considerations for Lunar Telescopes". Paper prepared for
presentation at a NASA Workshop entitled, Space Environment on the Moon. Date
approximately 1986-1 987. On file with the author. See also, Chapter 1, supra. n.40.
6'
267
natural existence, including if necessary a prohibition on al1 space projects
which could have adverse effects on such fulfilment.
/b) Protection and Preservation
States have an obligation to plan and conduct al1 space projects with
the objectives of protecting and p r e s e ~ n gboth the planetary
environment and its inherent worth, so as to avoid any effects
adverse to the interests ("adverse effects") of the planetaty
environment, which includes the biosphere and al1 related
ecosystems.
This obligation gives effect to the means bv which respect for nature is
embodied in human conduct. Humankind has a legal dutv to avoid harm t o ,
or interference with, natural entities-in-ecosvstems or, if that is not possible, to
ensure that anv impairment is minimalb2. The requirement that al1 space
projects be planned and conducted with these purposes in mind nieans that al1
such projects are subject to the principles of biosphere management, the basic
method for rational ecosysteni protection and p r e s e r ~ a t i o n .Biosphere
~~
management is intended to ensure uniformity and consistency of approach in
efforts to avoid adverse effects in the planetary en~ironrnent.~"
"
See Chapter II, supra, text accompanying notes 53-78.
63
See Chapter IV, supra, Section B.
bj
See ibid at Section A.
268
Implementation of a biosphere management régime implicitly incorporates the
principle of precautionary mcasures as the fundamental management premise6s
and implements biosphere risk assessrnent as the prime management
technique?
The need for a supranational administrative institution to
implement the biosphere nsk assessment6' is supponed by the basic principles
of Artide IX of Outer Spnce Trenty, which cal1 for CO-operationwith, and due
regard for the interests of, other States. Supranational administration can also
be an effective force for verifving that sovereign States respect the principle of
good neighbourliness when dealing with allegations of exclusive sovereign use
of "resources" in caming out space proje~ts.'~
The obligation to prevent, bv taking steps to avoid effects adverse to the
interests of the planetan? environment, draws attention to the distinctions
made in the biocentric moral perspective between the differences in the
interests of humankind and other biological entities-in-ecosystems, and among
65
See ibid. at 149-1 50.
66
See ibid. at Section C.3.
67
See ibid. at Section C.3(a).
'*
On other possible roles for a supranational administrative institution, see ibid.
269
the classes of human interests which mav conflict with the interests of nonhuman biological entities-in-eco~ysterns.~~
In conducting space projects States have an obligation to take al1
measures necessary to prevent or, if necessary, reduce and control, in
as timely a manner as possible and to as great an extent as
technologically feasible, any adverse effects to the planetary
environment arising from space projects, including the introduction
of any substance into, or the implementation of any activity in, the
planetary environment, induding the biosphere and all related
ecosystems.
This obligation expands upon the principle of protection and preservation bv
prescribing the means bv which harm to, and interference ~ l t the
h fulfilment
of, the existence of natural entities in the planetarv en~lronmentare to be
avoided when carrying out space projects. It clarifies that the meaning of
"projects" includes both actillties and substances in order to ensure rhat
consideration is given both to environmental risk assessment for activities and
to life cycle assessment for substance^'^.
To achieve minimal impaim~ent,al1 necessary measures must be taken. Given
the tendency of States to show some bias in favour of their own interests, it
69
See Chapter II' supra, text accompanying notes 8 1-89.
'O
See Chapter IV, supra: Section C. 1.
270
wi11 be necessary to have an objective determination of whether al1 possible
measures and their implications have been considered. This determination is
the purview of the biosphere risk assessrnent process, particularlv during the
comprehensive review stage."
Techniques for minimal impairment are represented bv the trilogv of prevent,
reduce and control. "Prevent" is Iisted first because it is the preferred course of
action according the principle of precautiona.
meas~res.~'To stress that
"prevent" is the pnority option, it is set apan from "reduce and control" bv the
words "or if necessary". To reduce should be interpreted to mean "to reriiove
the cause of the adverse effect"; to control, "to maintain the adverse effect at
as low a level as possible". Because reduction mav not, and control does not.
elirninate adverse effects, States should be required tu reduce and controi
adverse effects according to the best available technologv and as quickly as
possible.
M i l e prevention is the prirnn fncie course of action to be taken for new space
projects, it is possible to describe at least two situations in which prevention
7'
See ibid at Section C.3(b)(ii).
72
See Chapter III, supra, Section C.1.
271
could be waived. Certain conflicts of interest may require actions that result in
adverse effe~ts.'~However, even in these circumstances, the adverse effects
should be as minimal as possible and should be accompanied by appropriate
restitution.'"
The second situation arises where changes must be made to
aspects of existing space projects due to govemment regdation. Reduaion
and control measures should be permissible as intenm measures until the
appropriate clean technologies are in place. States should be obliged to ensure
that the development of the required technology is made in a timelv fashion.
73
See Chapter II, supra, Section C.Z(b)(ii)(~).
'' Ibid.
Today the greatest hazard facing humankind's space projeas in the planetarv
environment is space debns. It poses dangers to spacecraft and mission crews.
and could have adverse effects on other ecosystems in the planetary
environment, including the space plasma and the ozone layer. The space
debris hazard has introduced new safety issues for consideration bv the nations
active in outer space and has been the subject of numerous workshops,
conferences, consultations and
'
Several portions of this chapter appeared previously in H.A. Baker. "Space Debris: Law
and Policy in the United States" (1989) 60 U. Colo. L. Rev. 55 at 55-68. and will be so
indicated when they are used. These excerpts are repnnted with permission of the
University of Colorado Law Review. h e n d m e n t s have been made to the text in order
account for significant changes since original publication. Othenvise, these portions
remain unchanged because they represent the first technical analysis of space debris fiom
a Iegal perspective and were written before any of the now-standard technical references
on the subject were available. The basic facts and conclusions have not changed; if
anything, the space debris hazard is worse now.
The major publications are: United States National Research Council, Orbital Debris:
A Technical Assessment (Washington, DC: National Academy Press, 1995) [hereinafter
NRC Assessment]; European Space Agency, Proceedings of the First Europeun
Conference on Space Debris (Darmstadt, Ger: European Space Operations Centre, 1993)
[hereinafter Darmstadt Proceedings];J.A. Simpson, ed., Preservation of hrear-Earth
Space for Future Generatiom (Cambridge: Cambridge University Press, 1994); United
States National Security Council, Report on Space Debris (Washington, DC: National
Security Council, February 1989); United States Congress, Office of Technology
Assessment, Orbiting Debris: A Space Environmental Problem -- Background Paper
(Washington, DC: U S Governrnent Printing Office, September 1WO), and European
Space Agency, Space Debris: Report ofthe ESA Space Debris Working Group
(Noordwijk, The Netherlands: ESA, November 1988).
273
Space debris presents a significant hazard to current space systems. Ir has
been given comprehensive consideration in the developnient of new space
systems, such as the international space station and the "little LEO"
constellations of telecommunications satellites. and could now be rendenng
certain portions of near-Eanh space unusablem3
Without space projects, space debris would not exist. It was largely unforeseen
and, consequentlv, unplanned for when the first satellites were placed in orbit.
Nor were biocentric ethica! theories developed or adequate future planning
techniques available to applv to the problems being posed by the creation and
subsequent proliferation of space debris.
The purpose of this chapter is to applv the techniques of biosphere risk
assessment to space projects in the planetarv environment ("planetan?risk
assessment") as a means of remedying, from an environmental law perspective,
the risks posed bv space debris, the first major adverse effect to the planetan.
environment arising from space projects. To accomplish this purpose, the
For an overview of the current international consensus on the hazards to space assets
fiom space debris, see NRC Assessment, ibid. at 1-9.
274
applicable components of screening stage and the comprehensive review stage
of the planetary risk assessment process" will be applied.
A. The Screeninp S t a ~ e
Prior to reviewing space proiects for their space debris implications, al1 such
projeas are screened to ascenain the human interests they represent, to
detennine whether these interests raise conflicts with the basic interests of
natural entities-in-ecosystems and to decide whether the project c m be
undenaken?
The basic human interests are classified as basic, non-exploitive non-basic
("non-exploitive ") and exploitive non-basic ("exploitive") .6 In the planetan.
environment, the basic incerests of alien en-ties-are taken_into_accauntbvp
p
p
p
p
p
p
p
-
-
-
-
-
-
-
-
adding an extra step at the beginning of the screening process to account for
the possibilitv of the existence of alien entities-in-ecosvstems and their basic
interests.
See Chapter IV, supra, Section C.3.
See ibid. at Section C.)(b)(i).
See ibid. See also, Chapter II. supra, text accompanying notes 8 1- 104.
275
According to the legal obligation of respect for nature, the existence of alien
entities is presumed to be the case until the question of their existence is no
longer scientifically uncertain.' In order to commence a space project, the
project director must firsr demonstrate, with scientific cenaintv, that alien
entities-in-ecosystems do not exist. If they do exist, the project is prohibited
until it can be detennined what constitutes the basic interests of alien entitiesin-ecowstems ("basic alien interests").
Ascenaining basic alien interests could preseiit a daunting challenge because
the sunival and well-being of alien entities-in-econ~stemsniav be based on
totallv different phvsio-cheiiiical factors.' But respect for nature requires that
their interests be established. Where it can be demonstrated nith scientific
certaintv what are the basic alien interests, the project can proceed through die
screening stage. Where the purpose of a space project is to detennine the
existence of alien entities-in-ecosvstems or their basic interests, the projecr
proceeds through the remainder of the screening stage.
' See Chapter VI, supra at 266-267.
See e.g., Chapter 1, supra, text accompanying note 42.
276
Most space projects in the near future will likely fall within the categorv of
non-exploitive interests because their predominant purpose will be for the
public benefit: exploring our solar system; learning to live in the planetary
environment; improved telecommunication services. Determining whether a
space projea represents a non-exploitive interest has subjective and objective
cornponents. It must first be decided whether the project represents values of
central importance to the c o r n r n ~ n i t ~With
. ~ the principle of common
planetarv concem, the "community" is the community of humankmd as
represented by its political and technological elites. Depending on their
structure and objectives, space projects nlth a predominantlv public purpose
could include the development of cheaper and safer fuel and other energv
sourcesi0or the production of oygen from lunar soi1 for life support or rocker
'
fuel ' .
See Chapter IV, supra, text accompanying notes 143- 144. See also, Chapter II, supra.
text accornpanying note 9 1.
See e.g., "Japanese to Seek Funds to Study Lunar Helium-3" (19-25 July 1993) Space
News 15; "Exotic Fusion Energy Ideas Pushed by Helium-3 Fans" (30 August-5
September 1993) S'me News 16; "Scientists Discuss Herding Asteroids for Raw
Materials" (5- 1 1 April 1993) Space News 12, and "SSI Report on NASA's Clean Energy
Source, Lunar Study Now Available" (March 1990) Spacewatch 10.
'O
See e.g., "Lunar Oxygen Facility Tested Aboard Russian Moon Rover" (29 August - 4
September 1994) S'ce News 10 and "Lunar Oxygen Venture Begins" (24 Febmary - 1
March 1992) Space News 3.
277
Nor is it reasonably foreseeable that space projects to ensure the basic interests
of humans for food, water and shelter will be necessary, unless, of course, it is
prediaed with scientific cenainty that life on Eanh will perish, by intemal
combustion, humankind's conduct or meteorite impact.
The probleniatic space projects are those designed to fulfil exploitive interests.
Depending on the extent of their purelv private benefit, such projects could
include the orbiting of human remains for crematioii on re-entry;" use of L E 0
and payloads for advenising;13 use of the Moon as a theme park or other kmd
of entenainment;14 and use of L E 0 for tourism". Where the purpose of a
space project is predominantlv exploitive. it would be prohibited.
" "Celestis To Offer Commercial Space Mernorial Service" (2-8 October 1995) Spoce
News 1O.
See e.g., "Columbia Drops Plan To Hype 'Hero' on Cornet" (6-12 September 1993)
Space News 4 and "Senate Panel Quashes Advertising in Space" (1 5-78 August 1994)
Space News 2.
l3
See e.g., "This Lunar Rover Would Have a Theme-Park Attitude" (14-20 Febmary
1994) S'me News 17 and "ISE Unveils Lander Mode1 for 1997 Moon Launch" (28
March -3 April 1995) Spoce News 13.
I4
See e.g., "X" Prize Seeks $10 Million To Jurnp-Start Space Tourism" (3-9 July 1995)
Space News 19 and "NASA Begins Space Tourism Enterprise Assessment" (18-24
September 1995) Space h'ews 17.
l5
278
From these cnteria, it becomes apparent that predominandy commercial space
projects, particularly those involving the exploitation of celestial bodies, are
most likely to be forestalled during the screening stage. The current dearth of
knowledge about the possible existence of alien entities and the ecosysterns of
celestial bodies, in combination with the principle of common planetary
concern, l 6 the principle of precautionary measures' and the obligations to
'~
respect nature1*and to protect and presenre the planetary e n ~ i r o n r n e n t .may
be viewed as tantamount to a prohibition on commercial space projects.
Yet these safeguards for avoiding adverse effects bv hurnankind to the
planetan! environment are more Iike a moratorium than a prohibition because
thev are based on a lack of knowledge and an assessmenr requiring scientific
certaintv. There is, therefore, no need to legislate a prohibition, as was done
for mining in the Antarctic in the Mcidrid rotoc col'^. In practical tenns, this
l6
See Chapter VI, supra, Section B. 1(a).
l7
See ibid.at Section B. 1(c).
''
See ibid. at Section B.2(a).
l9
See ibid. at Section B.Z(b).
" Protocol on Environmental Protection of the Antarctic, 4 October 1991, ATS Doc. XI
ATSCMRI3M (1 99 1), reprinted in 3 0 I.L.M. 1 46 1 bereinafier Madrid Protocofl (not y et
in force), art. 7, States: %ny activity relating to mineral resources, other than scientific
research, shall be prohibited."
prohibition is a moratorium on Antarctic mining aaivity for at least 50 vears."
Any amendment to allow mining after 50 years must be adopted bv a majoritv
of al1 the Parties to the Antmcric ~ r e a t and
y ~ ~then ratified by three-founhs of
the Consultative Parties?
If such an amendment has not entered into force
within three vears of its adoption, any Party may give notice to withdraw and
~
"[a]ctual mining operations could
then withdraw two years ~ a t e r . ?Effectively,
... begin two years after notification of withdra~val".~~
I t is interesting to
speculate whether the Article 7 prohibition was put in the ibfczd~idProtocol to
appease the environmentalists, who believed that the 50-vear nioratoriuiii,
dong with an agreement to adopt a mineral developnient régime on espinTof
the moratorium, "constituted a clear v i ~ t o r ) . " :no
~ ~major oil and niineral
" Madrid Proiocol, ibid., art. 25, para. 2, provides that afier 50 years fiom the date of
entry into force of the Promcol, a conference will be held if so requested by a
Consultative Party to the Aniarctic Treay, 1 December 1959, 12 U.S.T. 794, T.I.A.S.No.
4730,402 U.N.T.S. 71 (entered into force 23 June 1961).
" Madrid Prorocol, ibid., art. 25, para. 3.
L3
Ibid, art. 25, para. 4.
'' Ibid, art. 25, para. 5(b).
W.B. Welch, "The Antarctic Treaty System: 1s It Adequate to Regulate or Eliminate
the Environmental Exploitation of the Globe's Last Wildemess?" (1 992) 14 Hous. J. Int'l
L. 597 at 644.
'5
'6 F. Francioni, "The Madrid Protocol on the Protection of the Antarctic Environment"
(1993) 28 Tex. Int'l L. J. 47 at 69.
280
companies had shown an interest in exploring the continent, most likelv
because there are no indications of any oil, gas or mineral deposits in
Antarctica of comrnercid value and appropriate mining technology is not yet
available."
Effective planetary risk assessrnent of commercial space projects does not
require a prohibition because, by virtue of the principle of precautionarv
measures, a dt facto moratorium is placed on commercial space proiects until
the appropnate level of knowledge is available. Where a commercial space
project developer believes that he has adequate knowledge and can
demonstrate to the world communitv that the project has a predominantlv
public purpose, the project can proceed to the comprehensive review stage.
B. The Com~rehensiveReview Stape
1. The P r o j e ~ t ' ~
Ail space projects. crewed and uncrewed, generate human-made materials
orbiting in outer space ("space d e b r i ~ " ) .For
~ ~ the purposes of comprehensive
-
-
-
'' See Welsh, supra, note 25 at 648.
'' Material in this section originally appeared in Baker, supra, note 1 at 55-58.
While meteoroids are a natural source of orbital debris, space debris poses a much
greater risk of h m to space activities. See D.J. Kessler, "Earth Orbital Pollution" in
29
28 1
review, it is convenient to divide space debris into four categories: inactive
payloads, operational debris, fragmentation debris and microparticdate
matter. There are currently sonie 7800 trackable objeas in GEO, M E 0 and
L E 0 ("near-Earth ~ p a c e " ) . ' ~In April 1988, inactive payloads accounted for
20 per cent of the trackable space debris population; operational debris, 26 per
cent, and fragmentation debris, 49 per cents3' Micropaniculate populations
can onlv be estimated because thev are untrackable.
E.G. Hargrove, ed.. Beyond Spaceship Earth: Environmental Ethics ond the Solar Sysrenl
(San Francisco: Sierra Club Books, 1986) 47 at 48-49.
"Star Dreck" (January 1996) Sci. Am. 22. This figure is close to the June 1988 figure
of 7 1 10 trackable objects. "Space Becoming Earth's Junkyard" (1 2 June 1988) The
[Montreal] Gasette F4. Excluding inactive payloads, about 57 per cent of space debris
has been generated by the United States, 40 per cent by Russia and the former Soviet
Union, and 3 per cent by a combination of the United Kingdom, the European Space
Agency ("ESA"), France, West Germany, India, Japan and the People's Republic of
China; E. Marshall, "Space Junk Grows with Weapons Tests" (1985) 20 Sci. 424 at 424.
j0
3' "Orbital Space Debis Threatens Future of Scientific and Commercial Missions" (1 8
July 1988) Satellite News 2 at 3. A reduction of fragmentation debns to 42 per cent is the
major difference in recent figures. See NRC Assessment, supra, note 2 at 22. The change
is likely due to the voluntary halt placed on deliberate payload explosions and the venting
of fuel in first- and second-stage rocket bodies.
282
Inactive payloads are those former active payloads which can no longer be
controlled bv their operators. Of the more than 1000 inactive payloads now
orbiting Earth,32most are spent Earth-orbiting satellites and space probes33.
Operational debris are those objects associated with space activities, which
remain in near-Eanh space. While more than 7500 of these mission-related
objects have been deposited in near-Earth space since 1 9 5 7 , many
~ ~ have reentered the Earth's atmosphere and disintegrated. Mostlv launch hardware,
operational debris also includes itenis placed in near-Eanh space, either
accidentally or by design, by hurnankind dunng crewed missions.35
Fragmentation debris is produced when space objects break up as a result of
e?cplosions, collisions and possibly other unknown phenornena. Fragmentation
debris froni nearlv 100 identified satellite breakups accounts for 46 per cent of
al1 catalogued space objects in near-Eanh orbit, and is found at altitudes
-
j2
N.L. Johnson, "Preventing Collisions in Orbit" (May-June 1987) SPACE 17 at 17.
W.B. Winn, "The Sky 1s Falling: Managing Space Objects" (1984) 27 Colloq. L.
Outer Sp. 147 at 151.
'j
j4
Johnson, supra, note 32 at 7.
Operational debris objects include rocket bodies and apogee kick motors, pay load
shrouds, separation hardware and packing devices, empty fuel tanks and insulation,
window and lens covers, raw propellant and fiozen sewage.
35
283
maidy below 2000 km where many application satellites function and where
al1 crewed operations take place?
Explosions, either deliberate or accidental, have contributed more than 36,000
kg of debris fragments to the near-Eanh space en~ironrnent.~'Deliberate
explosions were detonated to prevent recovery of certain satellites and to tesr
~ v e a p o n s .Accidental
~~
explosions are generally the result of propulsion svstem
failures , dthough engine failures during operations have also resul ted in
satellite explosions.39 The cause of several recorded explosions has y e t to be
j6
Johnson, supra, note 32 at 17.
"Debris -- The Pollutant of Outer Space", at 3-4 (Webster University, Colo., February
1987) Unpubiished research paper. On file.
j7
On explosions to prevent recovery, see e.g., N.L. Johnson, "Artificial Satellite
Breakups (Part 1): Soviet Ocean Surveillance Satellites" (1 983) 36 J. Brit. Interplanetary
Soc. 5 1. Weapons tests included the anti-satellite ("ASAT") programmes of the United
States and the former Soviet Union and the US Strategic Defense Initiative ("SDI"). See
e-g., M.L. Stojak, Legally Permissible Scope of Current Military Space Activities in
dissertation, McGill University.
Space and Prospects for Their Future Control (D.C.L.
1985) at 32-33, 39-41 and 43, and N.L. Johnson, "Artificial Satellite Breakups (Part 2):
Soviet Anti-Satellite Program" (1983) 36 J. Brit. Interplanetary Soc. 357.
js
Johnson, supra. note 32 at 17. Old US and Soviet rocket bodies whose fuel tanks have
exploded are a prime source of this type of debris. O.J. Frederick, "Litter in Space
Increasing: Orbiting Trash Cm Proposed" (March 1985) Sp. World 17 at 17.
39
determined. Alternative explanations include deliberate destruction,
malfunction of a satellite sub-system and collision.J0
Collision-induced fragmentation debns poses a greater threat to active
payloads than do breakup fragments from explosions because the former is
produced in greater quanticies, travels at greater speeds and is generallv too
srnaIl to be tracked.'" In addition, certain incidents of debris fragmentation
cannot be attributed to a specific cause.42
Exarnpies of such debris fragmentation include the suspected breakup of two Soviet
space stations and the unexplained disintegration of two Soviet ASAT target satellites.
See M.S. Smith. '-Protecting the Earth and Outer Space Environment: Problems of OnOrbit Space Debris" (1983) 25 Colloq. L. Outer Sp. 45 at 46 and Johnson (Breakups Part
l), supra, note 38 at 361. respectively.
'O
41
Johnson, supra, note 32 at 18. On collisions, see also, infia, Section B.3(a).
Examples of such fragmentation include the breakups of Transit 4A [Johnson, ibid. at
1 71; Kosmos 954 [see "Fallen Nuclear Satellite Poses No Danger" (1978) 30 Current
Dig. Soviet Press (1 March) and "Intensive Anaiysis Under Way on Cosmos Debns in
Canada" (1 3 February 1978) A. CS.T. 22-23]; SNAP- 1 OA r'Radioactive Space Debris
Study Cites Hazards to Satellites, Earth" (22 September 1986) A. W.S.T.19 at 201, and
Kosmos 1275 [see D. McKnight, "Determining the Cause of a Satellite Breakup: A Case
Study of the Kosmos 1275 Breakup", at 1 and 7. Pre-print of a paper prepared for
presentation at 38th Congress, International Astronautics Federation, Brighton, October
1987 and N.L. Johnson, "History and Consequences of On-Orbit Breakups" (1 985) 5
Advances Sp. Research 1 11.
42
285
Microparticulate m: ter varies in size from 1- 100 microns43and consists of
particles, gases and spaceglow. It has been estimated that trillions of
microparticulates are present in near-Eanh space?
This class of space debris
is created by solid-propellant rocket motors ( " S R M S " ) ~surfaces
~
of orbiting
objectsq6and crewed spacecraftii.
'' D.J. Kessler, "More Than Meets the Eye" (June 1987) Sky & Telescope 587. One
micron is one millionth of a metre.
*
M.G. Wolfe and L.P. Temple III, "Department of Defense Policy and the Development
of a Global Policy for the Control of Space Debris", at 3. Pre-print of a paper prepared for
presentation at 38th Congress, International Astronautics Federation, Brighton. October
1987.
'' SRMs produce effluent from the rocket exhaust plume during firing. from the rocket
novle during the postfire penod and from auxiliary motor hardware. While most of this
effluent is solid aluminum oxide (0.25-5.5 microns). carbon particles as well as molten
potassium. phosphorus, chlorine and sodium are present. Carbon dioxide and nitrogen
gas, uith smaller amounts of oxygen and various hydrocarbons, are also emined. Wlile
al1 postfire phase effluent has not been identified, the major contaminants are oil and
grease. See P.T. Girata. Jr. and W.K. McGregor, "Particle Sarnpling of Solid Rocket
Motor E-xhausts in High Altitude Test Cells" in R.A. Roux and T.D. McCay, eds.,
Spacecrap Conraminarion Sources and Prevention (New York: Amencan Institute of
Aeronautics and Astronautics, 1984) 293 at 293-294, and P.T. Girata, Jr. and W.K.
McGregor, "Postfire Sampling on High Altitude Test Cells" in Roux and McCay. eds.
ibid, 3 12 at 325-326.
Various coatings and materials used in spacecraft, notably paints and their binder
agents, leave bits of space debris behind. This coating degradation and chipping is due to
exposure to ultraviolet radiation and atomic oxygen and to expansion and contraction
stresses resulting fiom severe changes in temperature. See Frederick, supra, note 39 at
17-18.
'6
47
Cabin leakage, outgassing of heavy molecules, water dumps, flash evaporator system
operation, reaction control system engine firings, particles and gases have been released
from space transportation system (STS) orbiters. See H.K.F. Eiders et al., "Space Shunle
Contamination Measurements fiom Flights STS- 1 Through STS-4" (1984) 2 1 J.
Spacecrafi & Rockets 306 at 306-307. The orbiters also exhibit a radiated glow
2. The ~ c o s v s t e m " ~
In near-Eanh space, space debns is found in orbit frorn altitudes of 200 to
approximately 40,000 ki~ometres."~
At least 45 rocket bodies and inactive
~'
payloads are in orbit around, o r have landed or crashed on, the ~ o o n ; at
least 23, around o r on Venuss1 and at least 43, around o r o n Marss2. Another
. ' ~ Earth,
four payloads are in the process of Ieaving the solar ~ ~ s t e r n On
although there is by definition no space debns. space projects mav have
adverse effects on ecosystems of the biosphere?
(spaceglow) which interferes with space-based optical measurements. See R.K. Cole et
a l , "Atomic Osygen Simulation and Analysis" (1 987) 15 Acta Astronautica 887 at 887
and 889-891.
See also. Chapter 1. supra, Section B.
Space debris found beyond GEO, i.e., at altitudes higher than 35,800 km. has two main
sources: objects in highly elliptical orbits with perigees in L E 0 and apogees up to 40.000
km; and objects in disposal orbits from 50 to 1000 km above GEO. See NRC
Assessment, supra, note 2 at 64-67 and 147- 149. A space object's perigee is the point in
its orbit closest to Earth; the apogee. the point furthest fiom Earth. Ibid. at 197-198.
9'
'O
R. Maurer, Junk in Space (New York: Simon & Schuster, 1989) at 28.
" Ibid. at 38.
52
Ibid.at 43.
53
See Chapter 1, supra, text accompanying notes 17-18.
54 See Chapter VI, supra, Section B.l(a). See also, "Space Debris Snidy Explores Effect
on Climate, Ozone" (1 8-24 October 1993) Space News 32.
287
3. Adverse ~ f f e c t s ~ '
Collision and interference are the major risks space debns poses to human life
and active payloads. More recentlv, concems have been raised that both liquid
and solid rocket-motor fuels are contributing to depletion of the ozone laye?'
and otherwise threatening the quality of the atmospheresi.
A collision mav resulr in loss of propeny or life, damage to persons or
propertv, generation of funher debris, misinterpretation, release of
contamination or the need to alter space operations or space object design.
Space debris also causes interference with scientific, commercial and militan.
space projects. In addition, at least the possibility exists that space debris
could be used for military purposes.
[a) Collision
A collision with space debris could result in the death of persons or
destruction of propeny. With speeds averaging 10 kmkec (more than 35,000
'' Material in this section originally appeared in Baker, supra, note 1 at 58-68. See aiso.
NRC Assessment, supra, note 2 at 79-99.
See e.g., C.Q.Christol, "Stratosphere Ozone Problem and Space Activity" (1992) 35
Colloq. L. Outer Sp. 259.
56
See e.g., M. Rothblatt, "Environmental Liability Issues of Rocket Exhaust under
International Space Law" (1992) 35 Colloq. L. Outer Sp. 307.
57
288
W o u r ) , a 0.5 mm-chip of paint could p u n a u r e a standard spacesuit, killing
a n astronaut engaged in an extravehicular a c t i ~ i t The
~ . ~ impact
~
of an object 1
cm in diameter with a space station could penetrate the pressurized crew
module. killing the crew and causing the station to break up; i t could pierce
the window of a space shuttle, killing its occupants and seriously damaging the
spacecraft, or could disable or destroy a satellite in GE0.'9 The development
and construction of the space station has alreadv suffered serious delays due to
design alterations to increase protection against space debris." W A R S A T ,
Canada's first remote-sensing satellite, was the first satellite t o undergo
L.P. Temple III. "The Impact of Space Debris on Manned Space Operations". at 6 .
Paper prepared for presentation at Arnencan Institute of Aeronautics and Astronautics
Space Systems Technology Conference, San Diego, Cal., June 1986. and Wolfe &
Temple, supra. note 44 at 3. The risk of such a collision has increased four orders of
magnitude in 10 years. Temple. ibid.
58
See "Station Likely To Be Hit by Debris" (17 September 1984) A. W.S. T 16; D.S.
Edgecombe, N.H. Fischer and R.C. Reynolds, "Space Cr& Design Alternatives to
Accommodate the Collision Threat Posed by Orbiting Man-Made Debris" in G.W. Heath.
ed., Spnce Safey and Rescue 1982-83 (San Diego, Cal: Univelt, 1984) 223 at 226; A.
Oberg, "Trashing the Orbital Frontier" (October 1984) Sei. Dig. 4 1 at and S. Wiessner,
"The Public Order of the Geostationary Orbit: Bluepnnts for the Future" (1983) 9 Yale J.
World Pub. Ord. 21 7 at 226-227. There is also an escaiating risk of damage to the
Hubble Space Telescope. "Hubble Trouble?" (January 1987) Sky & Telescope 3 1.
59
See eg United States General Accounting Office, Space Station: Delays in Dealing
with Space Debris May Reduce Sufety and Increase Cosls (Washington. DC: USGAO,
June 1992).
60
289
changes a t an advanced stage of design in order to protect i t against space
debrk6'
Collisions with space debns could also cause v a ~ n degrees
g
of damage.
"Graceful" degradation of spacecraft capability could occur, due to pitting or
fracturing of opticai surfaces, solar ce11 cover glasses or special thermal
coatings; the skin of a spacecraft (shielded or unshielded) could be penetrated,
leading to damage or destruction of seconda.
sub-svstems (e.g.,computers
and communication equipment) or even more robust subsvsrems ( e g ,
propulsion system components and high-pressure fuel tank^).^' In addition.
launching upper stages 114th SRMs near US shuttle orbiters leaves open the
possibilitv of damage to thern-ial protection tiles and crew obsenration n1ndon.s
from the high velocity cloud of small par tic le^.^^
Evidence indicating that space debris has stmck active pavloads abounds. An
early indication was obtained from Explorer 46. Analvtical results of the 4 3
6'
See H.R. Warren and M.J. Yelle, "Effects of Space Debris on Commercial Spacecraft
-- the RADARSAT Exarnple" in Simpson, ed., supra, note 2 at 77.
'' Edgecombe et al.
63
supra, note 59 at 226.
Girata & McGregor (Particle sampling), supra, note 45 at 291.
290
impacts with the satellite could only be explained by man-made o b j e c d 4 T h e
first real proof that space debris was striking active pavloads was provided bv
the Skylab cosmic dust experiment, S- 149? A widely discussed collision
occurred in June 1983 when the windshield of the Challenger shuttle orbiter
was stmck by a particle of thermal paint about 0.2 mm in diameter estimated
to be travelling a t a speed in the range of 3-6 km/sec. This impact represented
the first confimed daniage to an operational spacecraft by space debris?
More recentlv, examination of materials recovered from the Solar Maximuin
Mission satellite ("Solar Max") and the Long Duration Exposure Faciliry
(" LDEF") have revealed hypervelocitv impacts wi t h meteoritic materials, paint
particles and partides of unknown origin. Analvsis indicates that possiblv 70
per cent of the impacts on Solar Max resulted from space debris."'
--
--
64
Kessler, supra. note 29 at 57-58.
65
See Wolfe & Temple. supra. note 44 at 3-4 and Kessler, ibid.at 57.
At first believed to be a micrometeonte impact, the paint chip lefi a Crater 2.0-2.4 mm
across and 0.63 mm deep and damaged the glass out to a diarneter of 4 mm. Due to the
severity of the impact, the windshield could not be reused. See "Strike Craters Shuttle
Windshield, Forces Replacement" (1 1 July 1983) A. W.S.T. 18; Frederick, supra, note 39
at 18; R. DeMeis, "Cleaning Up Our Space Act" (February-March 1987) Aerosp. Am. 10
at 10; Kessler, supra, note 43 at 587, and Kessler, supra. note 29 at 57.
"
On Solar Max, see Kessler, supra, note 29 at 58; Wolfe & Temple, supra, note 44 at 4.
and F.J.M. Rietmeijer er al., "An Inadvertent Capture Ce11 for Orbital Debns and
Micrometeorites: The Main Electronics Box Thennal Blanket of the Solar Maximum
Satellite" (1986) 6 Advances Sp. Research 145 at 147-148. The source of the particles of
unknown origin remains enigmatic. On LDEF analyses, see e-g., S. Mullen. J.A.M.
McDomell, & C. Tarrantino. "A Study of Meteoroids and Debis Impacts on the LDEF
67
In several cases where the cause of loss or damage t o active payloads is
unknown, collision has been put forward as a possible explanation. In these
instances, analysts have conduded that, but for a collision, the incident would
not have o c c ~ r r e d . ~ '
T h e cascade effect is perhaps the most serious consequence of collisions with
space debris. At present, the space debris population increases according t o
the quantity of new man-made objects placed in space. It is hvpothesized that,
when the space debris population reaches a certain threshold, collisions
between existing debris objects will create new debris and therefore obviate the
UHCRE Thermal Blankets" in Darmstadt Proceedings, nipra, note 2 at 153: J.A.M.
McDomell, "The L E 0 Microparticulate Environment: LDEF's 5.75 Year Perspective on
Orbital Space Debris and Meteoroids" in Darmstadt Proceedings. ibid at 171. and R.
Bernhard et al.. "Composition and Frequency of Impact Residues Detected on LDEF
Surfaces" in Darmstadt Proceedings. ibid at 189.
" Such incidents include the US communications reflector balloon PAGEOS [J.
Schefter, "The Growing Pen1 of Space Debns" (July 1982) Pop. Sci. 48 at 51 and N.L.
Johnson et al., History of On-Orbit Satellite Fragmenration, 2d ed. (Colorado Springs.
Colo: Teledyne Brown Engineering, 1986) 1-47]; Soviet target satellites, Kosmos 839 and
Kosmos 880 [Johnson (Breakup Part II), supra. note 38 at 36 1-36?]; Soviet ocean
surveillance satellite Kosmos 954 [see Marshall, supra, note 30 at 425 and V. Riche,
"The Facts About Kosmos-954" (1978) 27 1 Nature 497 at 4981; ESA's magnetospheric
satellite (Geos-2) [G. Wrenn, "Geos 2 in Space Collision?'(l978) 274 Nature 63 1 at
63 11; Kosmos 1275 [see Johnson, supra, note 42 at 14; Marshall, ibid at 425; Kessler,
supra, note 29 at 5 1-52, and Johnson (History), ibid. at 1-2761; Tracking and Data Relay
Sateilite A r'TDRS Orbital Shift Delayed Pending Study" (1 8 April 1983) A. W.S.T. 26271, and the third stage of an Ariane rocket in November 1986 [see "Ariane Booster
Fragments in Space" (February 1987) Satellite Telecommunic. 1 1; "Used Ariane Stage
Explodes, Creating Space Debris Hazard" (1 December 1986)A. W.S.T. 34, and DeMeis,
supra, note 66 at 1 11.
need for the introduction of new man-made objects to increase the debris
population. I t is possible that cascading has alreadv begun and that this selfgeneration will create a debris belt around Earth, despite the implementation
of launch constraints, related operational procedures and design al te ration^.^^
The significance of the cascade effect is three-fold: the occurrence of a few
collisions could increase dramatically the severity of the space debris problem;
collisions and anv ensuing cascading niav make this problem unmanageable
because space debns is vinuallv impossible to remove; and the near-Eanh
environment could become so full of space debris that certain regions of L E 0
would become unusable, especially at its lower lin~its.'~
Although collisions 111th space debris are inevitable, the intent of these impact
events could be niisinterpreted easilv. For esample, if a collision resulting in a
See NRC, sicpra, note 2 at 6-7. See also, D.J. Kessler. "Collisional Cascading: The
Limits of Population Growth in Low Earth Orbit" (1991) 1 1 Advances Sp. Research 63
and D.J. Kessler & B.G.Cour-Palais, "Collision Frequency of Artificial Satellites:
Creation of a Debris Belt" in H.B. Garrett and C.P.Pike, eds. Space S ' e m s and Their
Interactions in the Earth's Space Environment (New York: Amencan Institute of
Aeronautics and Astronautics, 1980) 707 at 707 and 724.
69
'O See R.C. Reynolds, N.H. Fischer and D.S.Edgecombe, "A Mode1 for the Evolution of
On-Orbit Man-Made Debris Environment" (1 983) 10 Acta Astronautica 479 at 48 1 ; R.C.
Reynolds, E.E. Rice and D.S.Edgecombe, "Man-Made Debis Threatens Future Space
Operations" (September 1982) Physics Today 9 at 1 16, and W. W. Mendell and D.J.
Kessler, "Limits to Growth in Low-Earth Orbit", at 1. Paper IAA-87-574 prepared for
presentation at 38th Congress, International Astronautics Federation, Brighton. October
1987.
293
loss of life were to lead to hostility and suspicion among nations, plans for a
rapidlv expanding human presence in near-Earth space could be fmstrated for
decades, possibly generations, t o corne." If space debris were to stnke an
active payload, that collision could be mistaken for an a m e d attack or sorne
other deliberate attempt to cause damage. The nsk of a dangerous
interpretation could only increase if weapons-related tests involving collisions
with targets are resun~ed.~'Misinterpretation could also occur on the re-entnr
of a collision-induced fragment into the Eanh's atmosphere because the final
trajectoy of a decaying, large space object is similar to that of a re-entering
ballistic rnis~ile.'~
''
Wolfe & Temple, supra, note 44 at 2.
" See B. Jasani, "Military Uses of Outer Space" in Stockholm International Peace
Research Institute, SIPH Yearbook 1987: World Armament and Disarmament (London:
Oxford University Press, 1987) 57 at 67 and Physicol Nulure and Technical Artribures of
the Geostationary Orbit, UN COPUOS, 1983, para. 36, UN Doc. NAC.105/203/Add.4
(1 983) bereinafier 1983Physical Narure].
J.A. Howeil, "The Challenge of Space Surveillance" (lune 1987) Sky & Telescope 584
at 588. As early as 1970, there have been instances when objccts in orbit could have
confüsed defense radars guarding against surprise missile attack. See C.S. Sheldon II and
B.M. DeVoe, "United Nations Registry of Space Vehicles" (1 970) 13 Colloq. L. Outer
Sp. 127 at 130.
')
Collisions between space debris and active payloads with nudear power
sources ("NPS") on board pose the hazard of radioactive contamination.'"
More than four dozen satellites canying in excess of one tonne of radioactive
materials were orbiting Earth in 1987. In Februarv 1995, it was reported that
more than two-dozen NPS Russian milita.
satellites were leaking reactor
By the end
coolant which could have "a ver). slight, residual radioa~tivity".~~
of this centurv, it is estimated that there will be more than three tonnes of
toxic fuels and fission products in orbit, unless there are reductions in NPS
If the active payload population continues to grow at present
rates, the chance of a collision between a crewed or uncrewed spacecraft and an
--
NPS satellite before re-entnr from its storag orbit is a "virtual certaintv"."
Moreover, due to natural orbital decav, NPS satellites or their radioactive
'' Other various wastes products which a collision with space debns could release
include unusable waste by-products destined for Earth, quarantined microbiological
organisms and used or contaminated material (e.g., stored gases and rocket motor
lubncant leakage). These materials would increase the quantity of space debns and cause
hazards to navigation, communication and health. P. McGarrigIe, "Hazardous Biological
Activities in Space" (1984) 18 Akron L.Rev. 1 O3 at 114; M.J. Mackowski. "Safety on
the Space Station" (March 1987) Sp. World 22 at 22-23, and Girata and McGregor
(Postfire sampling), supra, note 45 at 326.
7 5 "Russian Satellites Suspected as Space Debris Source" (1 3-1 9 February 1995) Space
News 19.
N.L. Johnson and D. McKnight, Artrficial Space Debris (Malabar, Fla: Orbit Books,
1987) at 90-9 1. As of October 1988, about 70 NPS were in orbit. "Atorn Power in Orbit:
A Fear of Debris" (19 October 1988) Intetn'l Herald Tribune 1.
76
"
N.L. Johnson, "Nuclear Power Supplies in Orbit" (1986) 2 Sp. Pol'y 223 at 23 1.
295
component parts could collide with a large space stmcture, when thev begin to
enter Iower altitudes afier several hundred years." In addition, release of
radioactive materials into the space environment could affect the performance
of proposed space-based radars, by disrupting the propagation of
electromagnetic waves in the a t r n o ~ p h e r e . ~ ~
The risk of collision with space debris is given serious consideration todav in
planning space operations. Space traffic management programmes have
already been altered to avoid the risk of collision.80 New spacesuits are being
designed to give greater protection against collision impacts, while the risk of
such an impact is considered bv designers of large structures such as the
international space station and the advanced X-rav astronoriw faci1ity."
(b) Interference
Space debns can interfere with scientific, commercial and militan? space
projects. Interference with these projects could also resulr in conflict-creating
Ibid. at 230-23 1.
"
"DNA Models Nuke Effects for Space Radars" (1 2 October 1987)MiIitary S'ce 4.
See NRC Assessment, supra, note 2 at 125-128.
" See Temple, supra, note 58 at 4 , 6 and 8; DeMeis. supra, note 66 at 10. and "Space
Station Likely To Be Hit by Debris" (1 7 September 1984) A. W.S. T 16.
296
mi~inter~retation.~'
Space debris rnay interfere with the space-based
acquisition of scientific data by causing damage to the surface of optical
instmments and solar panels or by impainng the accuracy of the scientific
data. Gases. solid particles and spaceglow released as by-products of STS
orbiter operations could also affect future scientific observations from vehicles
orbiting in s p a ~ e . ~ ~
Earth-based space activities also suffer from interference with space debris.
Inactive pavloads and rocket fragments mav disturb the frequencv bands in
which sensitive instmments (e.g., radio telescopes) operate, therebv preventing
clear reception of celestial radio signals. Space debris regularh disfigures
photographs of distant stars and galaxies, taken ~tlcithground-based telescopes,
and has prompted false disco~eries.~'In the future, threars of interference niaIr
8'
See supra, text accompanying notes 7 1-73.
Of special interest are the exhaust clouds of aluminum oxide released when secondstage SRMs are fired. These ciouds, existing for as long as two weeks afier the rocket
firing, affect significantly meteoroid measurements in near-Earth orbit and stratospheric
cosmic dust collection experirnents. See Marshall, supra, note 30 at 425, and A.C.
Mueller and DJ.Kessler, "The Effects of Particulates from Solid Rocket Motors Fired in
Space" (1985) 5 Advances Sp. Research 77 at 77.
83
"
See e-g.,M. Benko, W. de Graff and G.C.M. Reijnen, Space Law in the United
h'arions (Dordrecht, The Netherlands: Martinus Nijhoff, 1985) 140 and "Orbiting Junk
Threatens Space Missions" (4 August 1987) The New York Times C 1 at C3.
297
corne from space-based projeas which faii to account for saentific interests?
Concemed scientists have formed an organization to counter the proliferation
of space d e b n ~ . ' ~
Interference with commercial space activities by space debns is dominated bv
the problem of congestion, oi crowding, in LEOs and in GEO. Early crewed
missions confirmed the existence of congestion in LE O.'^ A US shuttle orbiter.
at an altitude of about 270 k n ~on a four-dav mission, is expected to corne
nlthin 200 km of sonie 67 space objects larger than 1 rn?
In GEO. satellites
sharing the same nominal orbital position corne close together periodicallv at
One plan was to launch a ring of 6-rn diameter aluminum-coated spheres into an 800km orbit. Such a ring oilight would do incalculable h m to astronomy. Another
proposal was to place in space a highly reflective sail with a surface of 1800 sq m. Its
brightness could have blotted out the faint stars and distant galaxies. both of which are of
great concern to many astronomers. See S. van den Bergh, "Century 21 : The Age of
Space Junk?" (JuIy 1987) Sky & Telescope 4 at 44.
8'
''Debris in Space Presents an Increasingly Dificult New Dilemrna for Scientists" (1 0
August 1987) Satellire N e w 7 at 8.
86
R.C. Hall, "Comrnents on Trafic Control of Space Vehicles" (1 965) 3 1 1. Air L. &
Corn. 327 at 329. As LEOs are the easiest region of near-Earth space to reach, they host a
wide variety of telecornmunication activity, serve as warehouses for space objects prior to
their transfer to higher orbits and provide temporary domicile for humans.
87
R.T. Swenson, "PoIIution of the Extraterrestrial Environment" (1 985) 25 A.F. L. Rev.
70 at 72 and Schefter, supra. note 68 at 50.
298
the borders of their s l o t ~ Space
. ~ ~ debris congestion in heavily used regions of
space could also lead to interference with transmissions from
telecommunication satellites and could disrupt other space-based acti~ities.~'
The militarv are also concerned that space debris could seriously interfere with
their planned space pro j e ~ t s . ~ '
[c) Militarv Use
Due to its destmctive nature, the possibilitv exists that space debris could be
hamessed for militaw purposes. In the United States, near-Eanh space is a
medium in which rnilitarv operations in support of national securitv are
currently taking place and which could be used in the future for as vet
untested p u ~ o s e s . 9 '
In a sample of G E 0 encounters for 21 satellites dunng a six-month penod in 1981.
there were 120 predicted encounters in a 50-km"near-miss" distance. Several close
approach predictions were in the 1-5 km range, necessitating collision avoidance
manoeuvres. 1983 Physical Nature, supra, note 72, para. 33.
89
The Feasibility of Obtaining Closer Spacing of Satellites in rhe Geostatio~taryOrbir.
U N COPUOS, 1985, para. 50,UN Doc. A/AC.105/340/Rev.l
(1985).
90
See e.g., "Contamination Threatens USAF Payload' (24 May 1987) A. W.S. T. 63 and
"DNA Models Nuke Effects for Space Radars" (12 October 1987) Military Space 4 .
See Wolfe & Temple, supra,note 44 at 7 and "The Orbiting Junkyard" (April 1982)
16 Futurist 77. See also, Jasani, supra, note 72 at 66-67.
92
299
Both individual space debris objects and space debris clouds could have
militan, applications, depending on the objective of the militarv action.
Individual objects have the advantage of size; debns douds have the advantage
of densitv, making them useful not o n h for inflicting damage, but also for
interference and camouflage purposes. Space debris would be an effective
countermeasure, both militarily and economically, against space platforms in
polar orbits because each piece of space debns has an energy potential of more
than 15 times that of dynamite.93 Space debris could also be introduced
deliberatelv into near-Eanh space either t o deny access to a panicular orbital
region which is perceived to be particularlv valuable to an enemv, or to
interfere with surveillance acti~ities.~'
The realization that space debris might be used as an offensive weapon would
necessitate expansion of platform bumper shields to ensure that any space debns would
hit them. At the sarne time, this additional weight would make the platform less
manoeuvrable, leaving its unshielded areas more wlnerable to impacts. See J.R.
Michener, "Orbital Weapons Systems: Requirements, Countermeasures and Offensive
Capabilities Creating a Cost-Effective (?) Defense?", at 7-9 (1987). Unpublished paper.
On file.
93
On denying access, see Reynolds et al. (Debris threat), supra, note 70 at 1 17 and
Oberg. supra, note 59 at 43. Following the explosion of an Ariane third-stage rocket in
Novernber 1986, it was thought that the United States was concemed that the resulting
debris was in the path of its only photo-reconnaissance satellite. Jasani, supra, note 72 at
66. On 26 October 1987, the US Air Force launched a "classified military payload"
which was most Likely a similar photo-reconnaissance satellite. "Successfui Launch Ends
18-Month Grounding" ( 2 November 1987) Satellite News 12.
9'
300
4. Mitkation
For a space project is to pass through a cornprehensive review, the project
developer will be required to demonstrate that al1 necessa.
steps have been
taken to reduce or control, in as tirnelv a manner as possible and bv using the
best technology available, the potential adverse effects which could be caused
by space d e b r i ~ . ~ ~
When the space nations became awvare of the adverse effects of space debris on
their space operations, efforts began on an ad hoc basis in the late 1980s to
determine the best methods for mitigating these effects. With the publication
in 1995 of the NRC Assessment on space d e b r i ~an
, ~orchestrated,
~
international approach for rnitigation of space debris nras initiated. The NRC
Assessment is for the most p a n a consensus document, written b~ the NRC
Corninittee on Space Debris ("NRC Conimi ttee") , with contributions froin
individuals and organizations from around the world having e ~ ~ e n i in
s espace
debris science, technology, law and policv.
'' See Chapter IV, supra, text accompanying notes 159- 162.
Supra, note 2. On the contributions of individual States to the mitigation of space
debns, see Canadian Space Agency, The Report ofthe ICS Subcommittee on Spnce
Debris (Montreal: Canadian Space Agency. July 1996) Appendix.
96
301
The signifkance of the NRC Assessment is that it will likely establish the
parameters for voluntary international standard-setting by those States with
major interests in space projects. Currently, these States are the ones which
manufacture launch vehicle components and payloads, and which Iaunch the
vast majority of spacecraft: the United States, Russia, the European Space
Agencv, Japan and China. By agreeing on tedinical standards outside the
diplornatic and legal constraints of the international space law-making bodv,
the United Nations Cornmittee on the Peaceful Use of Outer Space
("COPUOS"), these stakeholders hope to set anv future agenda for standardsetting in the technical and legal sub-cornmittees of COPUOS.
In a related matter, NASA has for the Iast few years, in cor-isultation with the
other space nations, been developing a handbook of guidelines, designed for
The handbook is
use by US industry in limiting space debris generati~n.~'
likely to be modified to incorporate the recommendations of the NRC
Assessment and could serve as an international benchmark for space debns
mitigation.
97 R.C. Reynolds et al., "A Handbook to Support the NASA Policy to Limit Orbital
Debris Generation -- A Progress Report" in Darmstadt Proceedings, supra, note 2 at 6 19.
302
The first recommendation of the NRC Committee is to form an "expanded
international group to advise" on future areas of research and research
r n e t h ~ d s .Action
~~
on this proposa1 could mark the commencement of efforts
to create a supranational body to oversee space debris standard-setting and to
lobby for, and othemise encourage, States to implement these standards. This
display of international CO-operationto address a matter of cornmon concem is
evidence of the regard the spacefaring nations have for the interests of other
States, as required bv Article IX of the Outer Spncr T r e a ~ This
~ ~ . attitude
supports the principles of good neighbourlines~'~~
and precautionay
and endorses, afbeit in a limited manner, 'O2 the various elements
n~easures'~',
of the comprehensive review.
98
NRC Assessment, supra, note 2 at 176.
Treaty on Principles Governing the Activiiies of States in the Exploraiion and Use of
Ouier Space, including the Moon and Other CeZestial Bodies, 27 January 1967, Can. T.S.
1967No. 19. 18 U.S.T. 2410,T.I.A.S. No. 6347,610 U.N.T.S. 205 [hereinafier Ourer
Space Treaiy] (entered into force 10 October 1967). See also, Chapter V, supra, text
accompanying notes 69-74.
"
See Chapter VI, supra, Section B . 1(b).
'O'
See ibid. at Section B.l(c).
'O'
See infia, criticisms of NRC Committee recommendations for mitigation, waste
management and monitoring.
303
The principal recommendation of the NRC Committee for reducing and
controlling space debris is to prevent accidental explosions. which create most
fragmentation debns, by removing fuel and other pressurized materials from
rocket bodies and payloads at the end of their funaional lifetimes and bv
dissipating energy in batteries and other storage ~ ~ s t e r n sAnother
.'~~
recommendation is to reduce, where possible, the release of mission-related
ob jects, the redesign of which is fairly easv and not significantly espensive. 'O4
Space debns arising from crewed missions and from the exhaust products of
SRMs are not considered for mitigation. The former "will not reduce the
overall long-term debris hazard"; the "potential damage that [the latter] can
cause to functional spacecraft [is] s r n a ~ l " . 'I~t ~is also recommended to space
project developers to attempt to develop paints and themial materials that do
not chip, in order to avoid "surface degradation" to "unprotected spacecraft
components such as optics windows and tethers".lo6
'O3
See NRC Assessment, supra, note 2 at 180. See also, ibid. at 136-142.
'OJ
See ibid at 18 1. See also, ibid. at 136-137.
'O5
See ibid. at 137.
'O6
See ibid. a? 18. See also, ibid. at 142.
304
Removal of non-functional rodcet stages and payloads from orbit is seen as an
important method for avoiding adverse effects on space activities. The NRC
Cornmittee recommends that in L E 0 space objects such as these be removed
by deorbiting, through use of the spacecraft's propulsion system, or by
reducing the orbital lifetime of the space object by accelerating its natural
decay.lo7 While the NRC Cornmittee could not reach agreement on the exact
limitation of lifetime for a rocket body or non-funcrional spacecraft in LEO: i t
supponed a NASA guideline for removal "no longer than 25 years after
mission c o r n p l e t i ~ n .Disposa1
~~~
orbits were rejected as an option in L E 0
because it is possible to remove space debns from orbit and "there is a lack of
sufficiently unpopulated regions" for the allocation of disposal orbirs. 'O9
In GEO, deorbiting or reduced orbital lifetimes were not considered as a
method of removal because the necessary manoeuvres would be "prohibitively
costly".
' l0
The alternative is boosting the space debns to "disposal orbits ",
although consensus could not be reached on the altitude of these orbits above
'O7
See ibid. at 182. See also, ibid. at 143-145.
'O8
See ibid. at 182.
lm
See ibid at 152.
"O
See ibid. at 148.
305
G E 0 "or on whether the use of disposa1 orbits is the optimal strategv for
containing the G E 0 debris hazard"."'
Until a strategy is agreed upon, the
NRC Cornmittee recommended that non-functionai spacecraft, "if they are
capable of safely performing a reorbiting nianeuver," should re-orbit to a t least
300 km in altitude above the geostationary band."'
Active removal of space
debris from L E 0 or G E 0 bv either a dedicated spacecraft or other. as vet
technicallv unproven means, is considered uneconornical for the foreseeable
future."
While this voluntanr international effort to agree on mitigation measures and
standardized procedures is commendable, in the contest of planetan. risk
assessnient the conclusions in the NRC Assessrnent are too nanow on three
separate grounds. First, the scope of the recommendations does not include ail
adverse effects from space debris, as required from the legal obligation of
mininial impairment,'
'" which underlies the coniprehensive review.
Second,
mitigation measures are limited to coIlisions with space debris, with no
Il1
See ibid. at 1 82. See also, ibid. at 147- 152.
Il'
See ibid. at 182.
"j
See ibid. at 153-1 54.
"' See Chapter VI, supra, Section 2.C.
306
consideration given to the actual and potential adverse effeas on ground-based
a c t i ~ i t i e s . "to
~ the ozone layer,'16 or to the space plasma and the upper
atmosphenc regions of the biosphere"'.
Third, the mitigation measures are limited in their scope of application because
the NRC Committee only considered the extent to which a mitigation
"method d l actuallv reduce the debris hazard to space ~perations"."~The
Committee discounted the potential adverse effects of operational debris
released from crewed space missions and from exhaust products of SRMs
because thev wivill not cause sufficient damage to functional spacecraft.' l9
Restricting its considerations to the effect of space debris on "space
operations" funher limits possible mitigation measures bv focusing on space
projects in L E 0 and GEO, in disregard of the potential adverse effects of space
debris (i) on the surfaces of, and in orbirs around, the Moon and other
celestial bodies; (ii) to the biosphere, particularly the atmosphere, from the
launch and re-entw of space objects; and (iii) on the surface of the biosphere
-
---
-
--
"5
See supra, text accompanying notes 84-86.
Il6
See ibid.,text accompanying notes 56-57.
l l7
See Chapter 1, supra, text accompanying notes 32-35.
"*
NRC Assessment, supra. note 2 at 135.
Il9
See ibid. at 187.
307
caused during the manufacture, launch and retneval of spacecraft. These
limitations do not reflect the general principles of common planetaw
c ~ n c e r n "and
~ of good neighbourliness."' nor do rhey conform to the legal
obligations to protect and preserve the planetary environmentl2? and to ensure
that a11 space projects result in minimal impairment of that en~ironrnent''~.
Perhaps the major weakness of the proposed mitigation measures anses from
the high prioritv given by the NRC Cornmittee to the "cost of implementing
the debris reducrion meas~res"."~These costs include development costs for
new technologv and Iost opponunities "of an? revenue lost or perfomiance
sacrificed in implementing the r n e t h ~ d " . " ~The cost factor appears to have
provided the most fundaniental constraint on the mitigation anahsis,
particularlv in the NRC Committee's considerations of removal of space debris
in order to avoid
"O
collision^."^ But cost cannot be the prime mover of
See Chapter VI, supra, Section B.1(a).
See ibid. at Section B. 1 (b).
'?'
See ibid. at Section B.2(b).
Iz3
See ibid. at Section B.2(c).
12'
See e-g.,NRC Assessment, supra, note 2 at 135-136.
''5
Ibid. at 136.
Iz6
See ibid. at 143- 145.
308
planetary management. According to the principle of precautionary
rneas~res,'~'
and as restated in the legal obligations to protect and preserve,123
and to minimally i r n ~ a i r , "prevention
~
of adverse effects -- not the cost of
prevention- should be the prionty.
If economic incentives, technological
breakthroughs and creative alternatives are not forthcoming, then space
projects with potentially adverse effects should not be initiated.
5. Waste Management
Waste management is an organized svstern for disposing of unwanted bvproducts created in the manufacture, production and use of goods. A niaior
weakness of the NRC Assessnient is the absence of firm plans to manage the
disposa1 of newlv created space debns or to clean up existing waste sites. Such
management plans are necessaw in order to minimize adverse effects on
planetary ecosystems and to avoid interference with their inherent ~ v o r t h ' ~ ~ .
"' See Chapter VI, supra, Section B. 1(c).
The legal obligation to protect and preserve extends to any adverse effect in any
ecosystem. See ibid.,text accompanying notes 62-64.
The Iegal obligation to minimaliy impair ecosystems is to be carried out in a timely
manner and with the best available technology. See ibid. at [24].
lZ9
')O
See ibid., text accompanying notes 30-32.
13'
See Chapter IV, supra, text accompanying notes 163-165.
309
In near-Earth space, the recommended disposa1 strategies Vary according to
altitude. In LEO, disposa1 would not applv to existing space debris, but would
be limited to the removal of rocket bodies and payloads placed in orbit in the
future, within a proposed maximum of 25 years after placement.13' For GEO,
the NRC Cornmittee could not reach a consensus on disposal, but agreed that
rernoval would be quite costlv, in temx of both fuel requirements, which
would reduce the functional lifetirne of the spacecraft, and the research,
development and operation costs for a retrieval ~ e h i c l e . 'However.
~~
using a
disposa1 orbit, the NRC Cornmittee notes, "only moves the hazard to a slighth?
wider band" and "does not cornpletelv eliminate the hazard the objects pose to
spacecraft" in GE0.13" Interestingly, disposa1 in MEO. which is espected ro
host a multitude of new-generation global positioning and telecoinniunications
satellites bv the vear 2000, is not addressed.
These efforts are unsatisfactory for meeting the conditions of the planetan: risk
assessinent process. Minimally, space debris interferes with the inherent wonh
l 3
See NRC Assessment, supra, note 2 at 182.
'jj
See ibid. at 182 and 1 50- 152.
Ij4
See ibid. at 153.
3 10
of near-Earth space13' and is analogous to terrestrial littering, a practice
increasingly frowned-upon in the biosphere. As well, it interferes with
~~
scientific endeavours with a considerable public interest f u n ~ t i o n . 'The
practice of not disposing of space debris is contrary to the principle of good
neighbourliness, a principle of customary international lai^,'^^ which requires
that States take steps to avoid adverse effects in areas outside their jurisdiction
and control. States cannot waive this principle for reasons of e-xpedience.
Failure to give consideration to the disposal of al1 space debris also breaches
the legal obligatior. of minimal impairnient. If the litter is produced, States
have the responsibili tv to remove it.
The orbital lifetime of a spacecraft is determined priniarilv- bv- the altitude of
its orbit. In LEO. most space debris is found at an altitude of 2000 h
i
and
be10w.l~~
At 200 km,a spacecraft has an average lifetime of 1-4 davs; at 600
km,25-30 years; at 1000 km, 2000 years; and at 2000 km, 20,000 y e a r ~ . In
'~~
'j5
See Chapter VI, supra. Section B.2(a).
'j6
See supra, Section B.3(b).
13'
See Chapter III, supra, text accompanying notes 6 1-63.
Spatial density in L E 0 is greatest near altitudes of 1000 and 1500 km. W. F l w and
D. McKnight, "Options for Controlling Space Debris" in Darmstadt Proceedings. supra.
note 2,633 at 634.
IJ8
IJ9
See ibid. at 635.
311
GEO, with an altitude of 35,800 hi,the typical lifetime for spacecrafr is in
the order of tens of thousands of years or more.140
Rocket bodies and non-functional payloads below 2000 km in L E 0 couid be
removed within three rnonths, with no new technology developrnent, onlv- bv"changes in hardware or operational procedures"."" Rocket upper stages in
GTOs and other highlv elliptical orbits could be removed within 10 vears.""
Techniques for the disposal of space debris objects at altitudes above 2000 km
will require new technologv. Proposals to date include orbiting nianoemring
vehicles, drag and tether devices, destruction bv laser and debris
catcher/sweepers, none of which is cunentlv technologically feasible or costeffi~ient."~Alternative, more efficient propulsion methods are also being
e ~ p l o r e d . 'States
~ ~ which manufacture and launch spacecraft have a dutv to
pursue the developnient of these methods. as well as others for disposa1 of the
smaller-sized space debris, in fulfilment of their obligation of niininial
-
-
-
-
"O
NRC Assessrnent. supra, note 2 at 153.
'"
F l w & McKnight, supra, note 138 at 640.
14?
hid
Iq3
Ibid.
See e.g., infia, text accompanying notes 158- 162.
312
impaim~ent.As with technology development for mitigation measures,
appropriate cost incentives should be made available.
In near-Earth orbit, the requirement in the waste managenient plan for
deaning up existing disposa1 sites and abandoned work sites basicallv
corresponds to need for developing comprehensive rnitigation strategies, given
the physical nature of the near-Eanh ecosvstem. Site cleanups on the surfaces
of celestial bodies. including the Moon, Venus and Mars. have been given no
consideration in the NRC Assessment. Anv future crewed mission to these
celestial bodies should include a prioritv comniirment to dispose of previouslv
discarded materials. In anticipation of anv such mission, the Eanh-made
objects on each celestial body should be catalogued to detemiine whether these
objects can be usefullv re-used or recycled in order to reduce both mission
costs and the cost of final disposal. As to the disposa1 of wastes created bv
mission crews, whether in orbit or on the surface of a celestial body, future
crewed missions should be required to follow the first rule of the wildemess
camper and bring back everything that has not been consumed. Body wastes
should be recycled, where possible.
A legal impediment to the rernoval of space debris, panicularly the identifiable
larger items such as rocket stages and non-functional payloads, anses under
313
Article VI11 of the Outer Spnce Trenp14'. Article VIII allocates jurisdiction and
control over space objects to the State of registry of the space object. Article
VIII funher provides that ownership of a space object is not affected in outer
space. One negative consequence of this provision is that the State of registn~
has the exclusive right to make and enforce law in relation to anv space object
and personnel under its jurisdiction and control. A significant implication of
ownership is that consent of an owner is required for the possession, use or
disposal of the owner's propeny.14'
Assuming that the space debris to be removed can be characterized as a "space
~ b j e c t " , ' ~the
' State of registn dl have to agree, and the owner consent, to
the removal of anv space debris in orbit or on the surface of a celestial bodv.
Provisions for waiving the requirement of consent for rernoval of space debris
Outer Space Treaîyosupra, note 99, art. VIII, states in part: "A State Party to the
Treaty on whose registry an object launched into outer space is carried shall retain
jurisdiction and control over such object, and over any personnel thereof. while in outer
space or on a celestial body. Ownership of objects launched into outer space, including
objects landed or constnicted on a celestial body, and of their component parts' is not
affected by their presence in outer space or on a celestial body or by their return to the
earth."
I d
146 On the analysis of Article VI11 of the Outer Space Treaq as it applies to space debris.
see H.A. Baker, Space Debris: Legai and Policy Implications (Dordrecht. The
Netherlands: Martinus Nijhoff, 1989) at 67-71.
On the question whether "space objects" includes "space debns", see Baker. ibid. at
79-80.
Id7
314
could be negotiated among space project stakeholders. Such an agreement
could detemine the classes of space debris to which it applied, could restate
the principles of jurisdiction and control in the context of space debns removal
and could prescribe the conditions for removal. Implementation of this
agreement could be by means of an A n n e ta the Environmental Protocol to
Article IX of the Outer Space Trenty.l i s
6. Clean Technoloq
The development and application of clean technologies are a basic means for
remedving the problem of space debris, which mav be characterized as an
industrial extemalitv arising from the unplanned, adverse effects of space
projects on near-Eanh ecosvstems. Under the polluter pavs principle, the costs
of clean technologies should be "intemalized" into the cost of production and
passed on to the consumer. ' '
la
See Chapter VI! supra, Section A.
149
See Chapter IV, supra, text accompanying notes 63-67.
315
For the reduction and control of space debris, clean technologies are required
' ~ ~waste management l s l . Possible dean
for the purposes of r n i t i g a t i ~ nand
technologies indude reusable and rnultipurpose launch v e h i c l e ~ ;devices
'~~
for
removing orbital space d e b r i ~ ; "hardware
~
to reduce operational d e b n ~ ; ' ~ ' '
wsterns for controtled payload re-entry; paints, thermal coatings and binder
agents which do not break down in the near-Earth space e n ~ r o n r n e n t ; ' ~ ~
svsteins for recycling and re-using waste products and gases produced during
crewed missions,156and devices or systems for disposal of debris on the surface
of celestial bodies'
Perhaps the most proniising clean technologies are in the field of propellants
and propulsion systems. Propellants to replace SRM Çuels are being developed
''O
See supra, Section 8.4.
15'
See ibid at Section %S.
"' See e.g., "X-33 Hurdles: Afier Hardware, Find the Money" (28 August - 3 September
1995) Space
News 1: Preliminary work is under way to design a "reusable launch vehicle
with near airliner-like operations".
153
See e.g., Flury & McKnight, supra, note 138 at 640.
'"
See supra, text accompanying notes 34-35.
'51
See ibid at n.46.
'56
See ibid. at n.35.
Is7
See ibid.. text accompanying notes 50-53.
316
to eliminate aluminum oxide and hydrogen chloride. which not onlv pollute
outer space, but are considered to be contributing factors to degradation of the
ozone Iayer and the reduction in quality of the atmosphere. Cleaner fuel
substitutes in varying stages of development include cwogenic fuels, which
consist of super-cooled liquid hydrogen and oxvgen, and hvbrid h e l s which
combine solid fuels with a liquid or gaseous ~xidizer.'~'Alternative propulsion
systerns being proposed include antimatter propellants, which would result in
reusable, horizontal space vehicles with greater carrying capacitv and could
eliminate most of the space debns in orbit as well as adverse effects associated
with launch
pro ce dure^.'^^ Other proposed propulsion methods being explored
See e.g., "U.S. Defense Conversion Effort Buoys Amroc Hybnd Fuel Work" (4-1 3
February 1994) Space News 18 and "Hybrid Rocket Tests Impress NASA Skeptics" (7026 June 1994) Spoce News 6 . The NRC has "recornrnended that NASA pursue hybrid
propulsion as a high-pnonty technoiogy". Ibid.
See e.g., "USAF Predicts Antimatter Propellants Could Be in Use by Early 2 1st
Century" (2 1 March 1988) A. W.S.T. 19 and H.D. Froning, Jr., "Investigation of
Antimatter Air-Breathing Propulsion for Single-Stage-to-Orbit Ships" (1 988) 17 Acta
Astronautica 853. "If a rocket could be built that would use hydrogen heated by the
annihilation of antihydrogen mixed with it, the propulsive energy in one-hundredth of a
gram would be equivalent to that of 109 tonnes of the fuel that fires NASA's space
shuttle." "Filling Thermos Flasks for an Antimatter Picnic" (1 9 November 1994) The
Globe & Mail (National Edition) D8.
lS9
317
include electromagnetic launch s y s t e r n ~deuterium
,~~~
beam p r o p ~ l s i o n ' and
~'
electric prop~lsion'~'.
Because clean technologies are a means of reducing and controlling existing
adverse effects of space debns, they are interim measures and should be
supported by financial assistance in the form of cost incentives, in order to
internalize more easilv the environmental costs associated with the creation
space d e b r i ~ . 'The
~ ~ approach of intemalizing environmental costs would
eliminate the repeated, farniliar strategr. of pleading the costs of research and
development as a predominant justification for failing to take corrective
action. l b i A panicularlv attractive f o m ~of cost incentive rnight be lirnited
term, government subsidies or international consonia Bnancing, with returns
based on some combination of pro rrrrcr profit sharing and salvage rights to
retrieved space debris.
See e.g., "NASA Studies Use of Magnetic Launch Pad" (1 9-25 September 1991)
Space News 6.
''O
See e.g., "Deuterium Beam Possible Propulsion for Interstellar Probe" (1 2- 18
September 1994) Space News 16.
16'
See e.g., "Eureca's Electric Propulsion Test Experiences Failure" (1-7 February 1993)
Space News 5.
'61
''j
See Chapter IV, supra at 163.
Iw
See supra, text accompanying notes 1 24- 1 30.
318
7. Monitoring
Monitoring space debns in orbit provides another example of international cooperation among the space-capable States to resolve a problem of growing
common concem. Given the expense and sophistication of the technologv
required to detect, track and identiQ space debns and to predict wîth some
accuracy its orbital beha~lour,the thrust of international CO-operationhas
been on sharing information, derived from the efforts of the major space
project stakeholders.
Currently, the major techniques for monitoring the space debris environment
in near-Eanh space are the characteriration of space debris,16' the prediction of
hazards i t poses to space ope ration^."^ damage assessrnent and prediction,1"7
niodelling the future quantitv and nature of space debris and analvsing the
effectiveness of debris reduction n ~ e t h o d s ' ~The
? means for the
characterization of space debris include trackmg and cataloguing of space
debris bv ground-based radar and optical sensors operated bv the militan. in
Ib5
See NRC Assessrnent. supra, note 2 at Chapter 2.
'66
See ibid at Chapter 2.
16'
See ibid. at Chapter 5 .
'68
See ibid. at Chapter 8.
319
the United States and ~ u s s i a ;and
' ~ ~by sampling space debns both statisticallv
from ground- and space-based sensors and in the laborato.
by studving space
debris captured, advertently or inadvenently, on the surfaces of ~pacecraft''~.
Comprehensive monitoring of space debris is hampered by several factors,
perhaps the most significant being that oniy a small percentage of space debris
can be tracked, due mainly to the size of the debris objects and their location
and attitude in near-Eanh ~ ~ a c e .The
" ~ NRC Committee was avare of these
shortconiings and has recommended that "[tlhe creation of an international
svstein for collecting, sronng, and distnbuting data on orbital debris should be
explored", based on a "unified data base" from al1 source^;"^ that "models of
the future debris environment should be funher i n ~ ~ r o v e d " ;tliar
" ~ currently
uncatalogued "medium-sized and large" space debris in L E 0 "should be
-
'69
See ibid. at 3 1-37.
'70
See ibid. at 37-49.
"' See ibid. at 3 1 and 35. In LEO, space debris with a cross-section of 10-30 cm cm be
sensed by ground-based sensors; in GEO, the minimum size is 1 m. Ibid. at 34-33. The
attitude of a space object is the position of the space object relative to the siting sensor.
'"
See ibid at 177- 178.
'73
See ibid. at 177.
320
carefully studied" because of its potential to damage spa~ecraft;"~
and that al1
space debris in G E 0 shodd be studied due to the commercial value of G E 0
and the active payloads in it"'.
The thmst of these techniques and the recommendations for their
improvement basically conform with the monitoring requirements for
planetary risk assessment, i-e., t o ascenain and assess space debns nsk events.
both on a routine and emergency basis, and to predict and assess unforeseen
risk events and their consequences.'ï6 Clearly, an effort is being made for COoperat ive supranational planning for effective monitoring. However, as with
mitigation technique^.'^^ monitoring activities are restricted by their Iiniited
application to space operations occurring in near-Eanh space and bv cost,
panicularly for development of sensors.'71
'74 See ibid. The NRC Committee considered large space debris to be greater than 10 cm
in diameter; medium-sized space debris, between 1 mm and 10 cm in diameter; and small
debris, less than 1 mm in diameter. Ibid.at 2.
'"
'"
See ibid. at 177.
See Chapter IV, supra, text accompanying notes 167- 169.
See supra, text accompanying notes 1 14- 130.
''' See e-g., NRC Assessment, supra, note 2 at 42.
32 1
8. Post-Proiect Analvsis
For orbiting space debris, the requirements for post-project analvsis are
contained in the monitoring f ~ n c t i o n . " A
~ combination of sensing devices and
computer modelling techniques have been designed t o anticipate unforeseen
adverse effects, to monitor future mitigation practices, to v e n h past cornputer
modelling predictions and to deal effectively with accidents.180 The limitations
on the effectiveness of post-project analvsis are the same as those for
monitoring space debris: coverage of too few debris objects, a limited
application to near-Earth space operations and an overriding importance
accorded to cost-effectiveness. l 3 ' The adherence by post-project anal\rses to
the basic principles of international environmental law and the legal
obligations for planetarv management also suffer to the sanie estent as do
mitigation practice~.'~'
As to celestial bodies, no evidence is available of amr post-project analvses bv
the space launching nations of the space debris deposited either in orbit
'79
O''
See supra, Section B.7.
See Chapter IV, supra, text accompanying note 170.
"'
See also, supra, text accompanying notes 1 14-130.
'"
See ibid,text accompanying notes 120-123.
322
around or on those bodies, particularly for the detection of unforeseen effects
and earlv wamings of potential accidents. Future missions should be
mandated to collect required post-project information, which could not onlv
prevent adverse effects in alien ecosystems, but could also assist in
understanding the effect of alien environrnents on Earth-based materials and
their potential re-use.
9. Restitution
Restitution is necessanr in circunistances where a space project is justifiable
and minimal adverse effects are una~oidable.'~'Restitution is not, however, a
coiiipensation niechanism arising from legal liabilit~rfor daniage. Restitution is
anticipaton., based on the expectation of hami to biological entities-inecosvsten~s,'~"
and applies to new projects and alterations to esisting ones'".
For space projects, restitution n d l be required for amTadverse effects to
planetan. ecosvstems caused by space debris.
See Chapter II, supra, text accompanying notes 144-146.
ta4
See Chapter IV, supra, text accompanying notes 171- 173.
See ibid.text accompanying notes 133-134.
323
In the biosphere, restitution should be required for any adverse effects to
biological entities-in-ecosystems ansing from the re-entrv of space debris,
including general pollution of an ecosystem. Because the project developer
agrees t o the terms and conditions of restitution pnor to project
implementation, the question of liability in international space Iaw does nor
anse. Ia6
In near-Earth space, restitution for adverse effects of space debns would be
required for the death or injury of mission crew members and non-human
biological entities
and for interference 116th the ecosys tems of near-Eanh
for interference should be made bv
space and celestial b o d i e ~ " ~Restitution
.
the removal of space debris.
Restitution should take into account the possibilirv of the existence of alien
entities.IB9 Even if there is pri»in facie no likelihood that a space project might
the possibility of the need for
adverselv affect alien entities-in-eco~ysterns,~~~
Ia6
On legal liability in the planetary management régime, see infra, Section B. 10.
'13'
See Chapter IV, supra, text accompanying note 172.
See ibid , text accompanying notz 1 74.
lS8
Ig9
See supra, text accompanying notes 6-8.
See Chapter VI, supra at 266-267.
324
restitution should not be ignored. Accordingly, a preliminaw requirement of
any space project should be to take al1 measures to gain a comprehensive
understanding of the alien ecosphere, its components and the
interrelationships among them; and of the effects which the project rnav have
on the alien ecosphere. In this manner, appropriate plans for restitution wiI1
likely be available, should they be needed.
10. Liabilitv
The planetarv management régime applies the principle of precautionanr
' ~ that
'
n~easures'~'
and imposes the legal obligation to protect and p r e ~ e n ~ eso
adverse effects on ecosystems from space projecrs malr be avoided. Unless
scientific uncenaintv as to the risk of adverse effects has been overconie, a
space project should not be in~plernented.'~~
Any justifiable adverse effects of
a space project are to be compensated for by means of restiturion.19" In the
context of planetary risk assessment, considerations of legal liabilitv are
therefore limited to adverse effects arising from events unforeseen or
19'
See ibid at Section B. 1(c).
19'
See ibid at Section C.2(b) .
IP3
See supra, text accompmying notes 127- 130.
'91
See ibid. at Section B.9.
325
overlooked dunng the course of the preparation and evaluation of the
comprehensive review ("unforeseen adverse effects").
For any unforeseen adverse effect on natural entities-in-ecosystems from space
projects, the State actor will be responsible on the basis of strict liabilitv for al1
costs, including damage to persons, propertv and ecosystems, and costs of
mitigation, control, clean up and restoration. Strict liabilitv for unforeseen
adverse effects is based on the polluter pavs pnnciple, which views these effeccs
as externalities, to be built into future product c o s t ~ . 'The
~ ~ purpose of strict
liabilitv is to ensure that immediate and comprehensive action can be taken to
ensure that harmed ecosvstems are rnininiallv impaired. Wherher the
unforeseen adverse effect arose from negligent or criminal conduct is a matter
between the State actor and the space project developer.
The mle of strict liabilitv for unforeseen adverse effects is not consistent with
which govems
the liability régime established under the Linbilip Com)enti~ioiz,'~~
is fairlv
liability for damage caused by space objects. The Linbility Corit~e~itio~z
19'
See Chapter IV, supra, Section C.2(a).
Convention on lnternutional Liability for Damage Catrsed by Spuce Objecrs. 2 1
November 1971, Cm. T.S. 1975 No. 7,24 U.S.T. 2389, T.I.A.S. No. 7762.961 U.N.T.S.
187 [hereinafier Liability Convention] (entered into force 1 September 1972).
196
restrictive in its coverage. Damage is limited to harms to persons and to
property caused by space ~ b j e c t s . 'I~t is
~ generally agreed that damage does
not indude adverse effeas in near-Earth space,Ig8nor is it likely that "damage"
would apply t o alien entities-in-ecosystems. Further, the definition of "space
objects" is not broad enough to include al1 classes of space d e b r i ~ . ' ~ ~
For darnage caused on earth or to "aircraft in flight". liabilitv is absolute, ~ l t h
the launching State responsible for con~pensation.'~~Absolute liability would
exclude damage to areas of common planeta.
concern"' such as the
atmosphere, including the ozone laver. given that daniage means loss or
'"
Liability Convention, ibid.. art. I(a), states: "The tenn 'darnage' means loss of life.
persona1 injury or other impairment of health. or loss of or damage to property of States
or of persons, natural or juridical or property of international intergovemmental
organizations;"
lP8Baker, supra, note 146 at 79. On the meaning of "damage", see ibid. at 79-80. See
also, B.A. Humitz, State Liabilityfor Outer Space Activities in Accordance with the
1972 Convention on lnternaiional Liobilityfor Damage Caused by Space Objeczs
(Dordrecht, The Netherlands: Martinus Nij hoff, 1992) at 12-20.
See Baker, ibid at 62-67.
Liability Convention, supra, note 196, art. II, states: "A launching State shall be
absolutely liable to pay compensation for darnage caused by its space object on the
surface of the earth or to aircrafl in flight." On strict liability in the Liabiliv Conveniion.
see Hunvitz, supra, note 198 at 27-32.
'O0
'Ot
See Chapter VI, supra, Section B. 1(a).
damage to propeny of States,'02 and is restricted in air space to aircraft in
flight. To base a daim on strict liability, proof of damage and identification of
the launching StateZo3of the space objea would be required.
For damage caused in the planetarv environment, other than on the surface of
Earth and to "aircraft in flight", liability is based on negligen~e.?~''
If the
damage falls within the scope of Article I(a) of the Linbility Converltioir and if
the space debns is considered a "space object", a successful daim for liabilitv in
negligence will require the daimant to prove on a balance of probabilitv that
(i) the damage occurred; (ii) the darnage was caused bv the space debris object;
(iii) the space debris object is connected to a launching State; and (iv) the
launching State breached the due diligence standard, i.e.. the launching State
did not take al1 reasonablv foreseeable steps to avoid the event resulting in the
'O'
See supra at n. 197.
A Iaunching State includes the State which Iaunches or attempts to Iaunch a space
object; the State which procures the launch or attempted launch of a space object; the
State fiom whose temtory the space object is launched or attempted; and the State from
whose facility a space object is launched or attempted. Liability Convention,supra, note
196, art. I(b) and I(c).
'O'
Liabiliîy Convention, ibid., art. I I I , States: "In the event of darnage being caused
elsewhere than on the surface of the earth to a space object of one launching State or to
persons or property on board such a space object by a space object of another launching
State, the latter shall be liable only if the damage is due to its fault or the fault of persons
for whom it is responsible." On fault liability in the Liabihy Convention, see H u m - i ~
supra, note 198 at 32-36.
'04
328
damage.205This is an extraordinarily onerous burden in near-Earth and other
planetary ecosysterns and should prompt a daimant to consider self-insurance
for several reasons. First, the location of the alleged incident may make i t
impossible to prove a causal connection. Second. the cunent tracking
technology may foreclose on detecting the space debns object, let alone
identifying the launching State. Third, no standard of care has been
esrablished for space projects as a basis for evaluating the reasonableness of the
launching State's diligence. Fourth, existing levels of technologv n ~ a k e
avoidance of collisions with space debris, the principle adverse effect.
i n ~ p o s s i b l e .Therefore,
~~~
recovery for damage in the planetan. emironment
triggered by an unforeseen adverse event would be extremel~.unlikelv.
To provide adequate liabilitv in the planetanr emironment for unforeseen
adverse effects from space projects wiil require a régime distinct from that of
the Liability Conventioii, which could be implemented by means of an Annes to
the Environmental Protocol to the Outrr Spme Trenty.20' Application of the
Annex would be limited to unforeseen adverse effects to anv natural entities-
"5
See Baker, supra, note 146 at 84.
'O6
Ibid.
'O7
See Chapter VI, supra, Section A.
329
in-planetarv-ecosystems from space projects. Where the adverse effect and the
identity of the launching State are proved on a balance of probability, the
launching State would be strictly liable for costs on the basis of the polluter
pavs principle. Where the adverse effect is proved, but the identity of the
launching State is not, a space project insurance pool would provide the
compensation. The pool would have two ponds. A shallow pond would
provide compensation up to a specified f~xedlimit, with money provided bv
launching States and other space project owners in proportion to their project
actiilties. A deep pond would provide compensation for costs which spilled
over from the first pond, n l t h contributions from space project users in
proportion to their participation in space projects.
A precedent for such a compensation fund is found in the régime for the
protection of the marine environment from oil pollution. Together, the Oil
Pollutiori Corzve~itioir~~~
and the Fuiid C o i i v n l t i o i ~provide
~ ~ ~ strict liability for oil
International Convention on Civil Liabiliy for Oil Pollution Damage, 29 November
1969, 12 U.S.T. 2989,973 U.N.T.S. 3 [hereinafter Oil Pollution Convention] (entered
into force 19 June 1975).
'O8
Convention on the Establishment of an Inrernutional Fund for Compensation of Oil
Spill Damuge, 18 December 1971, 1 t 10 U.N.T.S. 57 [hereinafter Fund Convention]
(entered into force 16 October 1978).
'O9
330
pollution and full compensation to oil pollution v i ~ t i m s . ~Shipowners
'~
provide the monev for compensation under the O i l Pullutiorr Conve~itiori.With
the Fund Conve~ltion,the economic burdens and the risks of liability are shared
with oil imponers. The imponers provide the money for the Fund, which
covers compensation in excess of that available under the Oil Pollutioii
Convtxtion, through a levy based on their anticipated annual commitments for
oil."
'
This system "has hinctioned rather well. Compensation has been paid
relatively quicklv
-- beanng in mind the frequently complex issues involved --
and the daimants have in most case received adequate compensation".'"
I 1. Third Parties
Given chat space debris is located in an area of common planetam concern. al1
States should have the opportunitv to review and comment upon those aspecrs
"O
See D.Wilkinson, "Moving the Boundaries of Compensable Environrnental Damage
Caused by Marine Oil Spills: The Effect of Two New International Protocols" (1 993) 5 J.
Env. L. 71 at 75-76. For an overview of the maritime liability régime for damage caused
by oil pollution, see M. Jacobsson, "The International Conventions on Liability and
Compensation for Oil Pollution Damage and the Activities of the International Oil
Pollution Compensation Fund" in C.M. de la Rue, ed., Liabilityfor Damage ro rhe
Marine Environment (London: Lloyd's of London Press, 1993) 3; P. Wettentein, "Trends
in Maritime Environmental Impairment Liability" [1994] 2 Lloyd's Mar. & Corn. L.Q.
230, and Wilkinson, ibid For the US perspective, see M.K. Cooney, "The Stormy Seas
of Oil Pollution Liability: Will Protection and Indemnity Clubs Survive?" (1993) 16
Hous. J. Int'l L. 343.
'" Wetterstein. ibid at 235.
33 1
of a space projea relating to the potential adverse effects of space debns and to
the proposed remedies?I3 While al1 States may able to comment on whether
al1 potential adverse effects have been explored, the most effective criticism
should corne from States with the relevant experience. scientific knowledge and
technological expertise.
a3
See Cbapter IV, supro, text accompanying notes 176-177.
The prime motivating force for this study \vas a desire to develop an approach to
international environmental law that would provide a remedy for environmental
degradation on Earth and would at the same time avoid similar problems in outer
space. The study proposes such a rernedy by developing a biocentric (life-centred)
approach to international environmental law and by applying the principles based on
that approach to human activities in the entire planetarv environment.
Having examined the basic moral perspectives applicable to environmental
protection, the studv argues that a biocentric perspective provides a more appropriate
basis for international environniental law both on and off Eanh because it reflects an
environmental ethic mhich goes beyond human self-interest. This ethic is grounded
in the biological nature of humankmd and as such it accords equal respect to al1
biological entities and obliges hurnans to avoid haming or interfering nith the
natural existence of these entities. With a management régime for presenhg non-
human biological entities, the biocentnc ethic places constraints on the contemporanr
human tendency to ovenvhelm and incapacitate natural systems.
The study, further, modifies the four basic principles of international environmental
law necessary for adequate protection of the planetas, environment to better reflect
333
the biocentric approach. Because there already exists an intemationallv recognized
need for management of the biosphere, a régime, reflecting a biocentnc approach to
management of the biosphere, is recommended. It features an international legal
obligation t o respect the inherent worth of al1 biolorcical entities and to Drotect and
V
A
preserve the biosphere by avoiding adverse effects on ecosystems, as well as the
requirement to take al1 measures necessarv to rninimally impair the biosphere. These
principles provided the basis for suggesting a comprehensive, twvo-stage biosphere risk
assessment procedure for managing the adverse effects of hurnankind's projects on al1
biological enti ties-in-ecosystems.
While generallv supportive of international environmental law, the corresponding
provisions of international space law represent a human-centred approach which
would severelv restrict the application of the biocentric perspective to management of
the ulanetarv environment. To overcome these restrictions, the studv recommends a
L
draft of a "Protocol for the Protection and Preservation of the Planetary
Environment" to Article IX of the Outer S p c e Trenty. The Protocol takes the forni of
a framework instrument. setting out in the context of the planetary environment
general principles and legal obligations derived from the biocentric interpretation of
~ h basic
e
principles of international environmental laiv and the legal obligations for
biosphere management. With the Protocol as its basis, the biocentric nsk assessment
334
process developed in Chapter IV of the study is applied t o remedv, from an
environmental law perspective, the problem of space debris.
International environmental law and international space law are relativelv voung
4
.
branches of international law. When taken together, they still exhibit sufficient
flexibility to contribute significantly to the creation of fonvard-looking, innovative
and practicd law -- law that not only recognizes the human needs to explore and
create, but also acts upon the biological reality that humankind is a part of nature.
not above it. Enactment of the Environmental Protocol to the Outer S p c r Trrntv
J
would represent substantial movenient in this direction. If the international
con~niunitvof nations could demonstrate the collective wvill to avoid in outer space
the problems that overindulgent, human self-interest has spawned in the biosphere,
the Environmental Protocol, with its new principles of international environmental
space law and régime for planetarv environmental management, could proxlde a
mode1 for human conducr on Eanh as well as in outer space.
A. TREATIES
Amendment to the Montreal Protocol 011 Substances that Deplete the Ozo~ieLnyer, 29
June 1990, UN Doc. UNEP/OzL.Pro.2/3 (1WO), reprinted in 30 I.L.M. 539
(entered into force 10 August 1992).
Agreement Goveming the Activities $States on the Moon alrd Other Celestid Badirs,
18 December 1979, 1363 U.N.T.S. 3 (entered into force 1 1 July 1984).
Agreement on the Rescue of Astronnuts, the Retunr of Astro~autsand the Retuni of
Objects Lmwclred into Outer Spnce, 22 April 1968, Can. T.S.1975 No. 6, 19
U.S.T. 7570, T.I.A.S. No. 6599, 672 U.N.T.S. 1 19 (entered into force 3
December 1968).
Aatnrctic Trenty, 1 December 1959, 12 U.S.T. 794, T.I.A.S. No. 4730, 402
U.N.T.S. 7 1 (entered into force 23 rune 196 1).
Coweiztion ori Biologicd D i v e r s i ~5, June 1992, UN Doc. UNEP/Bio.Div/N-7INC.5/4 (1 992), reprinted in 3 1 I.L.M. 8 18 (entered into force 29 December
1993).
Coilveiztiori or1 E~iviroimienttrlInipnct Assrssninit iii n Tr~risboziiidmyCoiitrxt, 25
February 199 1, ECE Doc. E-ECE. 1250, repnnted in 30 I.L.M. 800 (not ver in
force).
Coirventioil or1 the Estnblishnierit of mi Intenrntioml Fund for Co>npisntioiiof Oil
Spi12 Dnninge, 18 December 197 1, 1 1 10 U.N.T.S. 57 (entered into force 16
October 1978).
Convcntioir on Ii~tenintionnlCivil Avintioir , 7 December 1944, 15 U.N.T.S. 295
(entered into force 4 April 1947).
Convention on Intemationnl Linbility for Dnmage Cnused by Spnce Objects, 2 1
November 1971, Can. T.S. 1975 No. 7.24 U.S.T. 2389, T.I.A.S. No. 7762,
96 1 U.N.T.S. 187 (entered into force 1 September 1972).
Convention on the Prohibition of Milita y or Any Other Hostile Use of Enviroiimeiitnl
Modification Tech~iiques,18 May 1977, 31 U.S.T. 333, T.I.A.S. No. 9614, 610
U.N.T.S. 15 1 (entered into force 5 October 1978).
Declarntion 4 Legal Principles Governing the Activities of States in the Erplorrrtion and
Use of Outer Spnce, G A Res. 18/1962, U N GAOR, 18th Sess., Item No. 28, U N
Doc. A15656 (1963).
Declaration of the United Nations Conferoice on the Human Environmmt, 16 June
1972, UN Doc. A/CONF.48/144 (1972), reprinted in 11 I.L.M. 1416.
Intemntional Coizvention on Civil Linbilip for Oil Pollution Daniage, 29 November
1969, 12 U.S.T. 2989, 973 U.N.T.S. 3 (entered into force 19 June 1975).
Intemntionnl Convention on Oil Pollution Prepnredness, Resporrre and Co-operntiort,
30 November 1990, reprinted in 30 I.L.M. 735.
Intentatioiml Respoitsibility of Sntes in regrird to the Environ»zrrit,GA Res. 2 7/Z 996,
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Maiztrrnl PI-otuculon Substmices that Deplete the Ozoilr Lniw, 1 6 September 1 98 7 .
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Protocol on Eiwiroiznzentd Prottrtion Of the Antnrctic, 4 October 1991, ATS Doc. XI
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Rio Drclnrntioti O N Eriviroitrnnit ami Drvrlop~ie~it,
14 June 1992, UNCED Doc.
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l'rmty Bnnning Nuclenr Weapons Tests in the Atmospltere, in Outer Space mzd uridrr
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United Nntions Charter, 26 June 1945, 16 U.S.T. 1 134 (entered into force 24
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United Nations Convention on the Lnw of the Sen, 7 October 1982, UN Doc.
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United Nations Frarnework Conve~itiorzon Clininte Chmge, 9 May 1992, UN Doc.
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D. OTHER SELECTED DOCUMENTS
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